THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 

FACULTY  LIBBAJNf 


REPORTS 


CASES 


ADJUDGED  IN  THE 

SUPREME  COURT   £ 


PENNSYLVANIA. 


BY  HORACE  BINNEY. 


VOL.  VI. 


TO  WHICH  18  ADDED, 


A  GENERAL  TABLE  OF  CASES. 


PHILADELPHIA: 

PHILIP  H.  NICKLIX,  LAW  BOOKSELLER, 

No.  175,  CHESTNUT  STREET. 

PRINTED  BY  WILLIAM  FRY, 

1823. 


45 


Eastern  District  of  Pennsy  Irania,  to  wit: 

.***.*..  Bg  [T  KEMEMBF.RED,  that  on  the  eighth  day  of  August,  in 
*  SEAL.  •  tne  forty  -seventh  yeai1  of  the  independence  of  the  United  States  of 
!***»*.!  America,  A.  D.  18'22,  Horace  Binnev,  of  the  saiO  Disti'ict,  hath  de- 

posited in  this  office  the  title  <>t  a  Book,  the  right  whereof  he  claims  as  author,, 

in  the  words  following,  to  wit: 

"Reports  of  Cases  adjudged  in  the  Supreme  Court  of  Pennsylvania.  By 
Horace  Bianey.  Vol.  VI.  Second  edition,  to  which  is  added,  a  general  Table  of 
Cases." 


D.  C  A  LOWELL, 

Clerk  of  the  Eastern  District  of  Pennsylvania. 


JUDGES 

OF  THE  SUPREME  COURT  OF  PENNSYLVANIA. 

WILLIAM  TILGHMAN,  Esq.  Chief  Justice. 

JASPER  YEATES,  Esq. 

>  Justices. 
HUGH  H.  BRACKENRIDGE,  Esq. 

ATTORNEY  GENERAL, 

JARED  INGERSOLL,  Esq. 


778504 


TABLE  OF  THE  CASES. 


ADAMS  v.  Thomas,          .         .  254 

Alexander,  Commonwealth  v.  176 

B 

Bailey  v.  Fairplay,  Lessee  of 

Watson,  ....  450 
Barker,  Meyer  v.  .  .  .  228 
Baxter  v.  Smith,  .  .  .  427 
Benn,  Cahill  v.  ...  99 
Biddis  v.  James,  .  .  .  321 
Blackburn  v.  Markle,  .  .174 
Bowman,  Enslin  v.  .  .  462 
Boyles  v.  Johnston's  Execu- 
tors, .  ...  125 
Brand,  Shaller  v.  .  .  .  435 
Breidenbach,  Haak  v.  .12 
Bringhurst  v.  Cuthbert,  .  .  398 
Broome,  Sparhawk  v.  .  .  256 
Brown  v.  Scheaffer,  .  .177 
Burd,  M'Dowell  v.  .  .  198 
Burr,  Wilkins  v.  389 
Butler,  Cavence  v.  .  52 


Cahill  v.  Benn,  ...  99 
Callan,  Commonwealth  v.  .  255 
Campbell  v.  Lessee  of  Gratz,  .  115 
Campbell,  Irvine  v.  .  .118 

Case  of  Shamokin  Road,  .         .       36 


Caufman  v.  Presbyterian  Con- 
gregation of  Cedar  Spring,  .  59 
Cavence  v.  Butler,  ...  52 
Charaberlin,  Richter  v.  .  .34 
Clark  v.  Israel,  .  .  .391 
Clarke  v.  Patterson,  .  .128 
Clements,  Commonwealth  v.  .  206 
Cochran,  Commonwealth  v.  .  456 
Colhoun  v.  Snider,  .  .135 

Commonwealth  v.  Commission- 
ers of  Lancaster  County,      .         5 
Commonwealth,  Young  v.        .       88 
v.  Alexander,      176 
White  v.         .179 
v.  Edwards,     .     202 
v.  Clements,   .     206 
V.  Holloway,   .     213 
v.  Cornish,       .     249 
v.  Callan,         .     255 
v.  Lewis,         .     266 
v.  Shepherd,    .     283 
v.  Wolbert,     .     292 
v.  Commission- 
ers of  Philadelphia  County,       397 
Commonwealth  v.  Immell,        .     403 
Eaton  v.          .     447 
v.  Cochran,      .     456 
Cooper  v.  Henderson,       .         .189 
Cornish,  Commonwealth  v.       .     249 


VI 


TABLE  OF  THE  CASES. 


Curwen,  M'Clenachan  v.  .  509 
Cuthbert,  Bringhurst  v.  .  .  398 

D 

Douglass,  Ilgenfritz  v.     .  •    402 

Drum  v.  Lessee  of  Simpson,  .    478 

Duffield  v.  Smith,     .        .  .302 

Duncan  v.  Forrer,    .        .  .193 

E 

Eaton  v.  Commonwealth,  .    447 

Edwards,  Commonwealth  v.  .     202 

Enslin  v.  Bowman,           .  .     462 

Etwein,  Rundle  v.    .        .  .136 

Evans,  Smith  v.  102 

F. 

Fairplaj,  Lessee  of  Watson, 

Bailey  v 450 

Felmly,  Werdman  v.  .39 

Forrer,  Duncan  v.    .  .        .     193 

Fox,  Grubbv.           .  .        .460 

French  v.  Reed        .  .        .308 

G 

Garrigues  v.  Reynolds,  .  .  330 
Girard  v.  Heyl,  .  .  .  253 
Gratz,  Lessee  of,  Campbell  v.  115 
Grubb  v.  Fox,  .  .  .460 

H 

Haak  v.  Breidenbach,  .  .  12 
Haine,  Heckert  v.  ...  16 
Hamilton  Lessee  of,  v.  Marsden  45 
Hantz  v.  Sealy,  .  .  .  405 
Harris  v.  Hayes,  .  .  .  422 
Hart,  Wakely  v.  .  316 

Hayes,  Harris  v.  422 

Heckert  v.  Haine,  ...  16 
Henderson  Lessee  of,  Rickets  v.  133 
Henderson,  Cooper  v.  .  .189 


Heyl,  Girard  v.  253 

Holloway,  Commonwealth  v.  .     213 

Homer,  Wenberg  v.          .  .     307 

Huber,  Shearick  v.  2 

Hyde,  Longenecker  v.     .  I 


Ilgenfritz  v.  Douglass,  ,  .  402 
linmell,  Commonwealth  v.  .  403 
Insurance  Company  of  North 

America,  Kohnev.  .  .  219 
Insurance  Company  of  North 

America,  Schwartz  v.  .  .  378 
Irish  v.  Scovil,  ...  55 
Irvine  v.  Campbell,  .  .118 
Israel,  Clark  v.  .  .  .391 


James,  Biddis  v.  321 

Johnston,  Thompson  v.  .  .68 
Johnston  v.  Tait,  .  .  .  121 
Johnston's  Executors,  Boyles  v.  125 

K 

Keister,  Santee  v.  .  .  .  36 
Kohne  v.  Insurance  Company  of 

North  America,   .         .         .     219 
Kreitzer,  Shaeffer  v.        .        .    430 


Lamberton,  Sanderson  v.  .129 
Lessee  of  Hamilton  v.  Marsden,  45 
of  Gratz,  Campbell  v.  .  115 
of  Rickets  v.  Henderson,  133 
of  Whitman,  Stoever  v.  416 
of  Watson,  (Fairplay,) 

Bailey  v.          .        .    450 

of  Simpson,  Drum  v.     .     478 

of  Snyder  v.  Snyder,     .     483 

of  Sweitzer  v.  Meese,       500 

Lewis,  Commonwealth  v.         .    266 


TABLE  OP  THE  CASES. 


Vll 


Litle  v.  Toland,      .        .  .83 

Longenecker  T.  Hyde,    .  1 

M 

M'Allister  v.  Marshall,  .  338 

M'Clenachan  v.  Curwen,  .  509 

M'Dowell  v.  Burd,           .  .  198 

Markle,  Blackburn  v.       .  .  174 

Marsden,  Lessee  of  Hamilton  v.  45 

Marshall,  M'Allister  v.  .  338 

Martin,  Smith  v.    -.         .  .  262 

Massej  v.  Thomas,           .  .  333 

Masteller  v .  Trhnbly,      .  .  33 

Meese  Lessee  of,  Sweitzer  -v.  500 

Meyer  v.  Barker,              .  .  228 

Milne  v.  Moreton,  .         .  .  353 

Moirison  -v,  Semple,        .  .  94 

Moreton,  Milne  v.            .  .  353 

Moulson  v .  Rees,      ...  32 

N 

Nichols,  Obermyer  -v .       .  .  159 

Norton,  Witman  v.         .  .  395 

0 

Obermyer  v.  Nichols,       .  159 


Patterson,  Clarke  v.         .        .     128 
Paul  v.  Vankirk,       .         .         .123 
Presbyterian    Congregation   of 
Cedar  Spring,  Cautman  v.    .       59 

R 

Reed,  French  v.  308 

Rees,  Moulson  v.  ,         .32 

Reynolds,  Garrigues  v.     .         .     330 
Richter  v.  Chauiberlin,     .         .       34 
Rickets  Lessee  of,  v.  Hender- 
son, .... 
Road  (Shamokin)  Case  of, 
Rundle  v.  Etwein, 
Russel  v.  Skipwith,          .        . 


S 

Sailer^  Zerger  v.  •  .24 
Sanderson  v.  Lamberton,  •  129 
Santee  v.  Keister,  .  36 
Scheatfer,  Brown  v.  .  .  177 
Schwartz  -v.  Insurance  Compa- 
ny of  North  America,  .  378 
Scovil,  Irish  v.  ...  55 
Sealy,  Hantz  v.  405 
Semple,  Morrison  v.  .  .94 
Shaeffer  v.  Kreitzer,  .  .  430 
Shaller  v.  Brand,  .  .  .  435 
Shamokin  Road,  Case  of,  .  36 
Shearick  v.  Huber,  .  .  2 
Shepherd,  Commonwealth  v.  .  283 
Simpson  Lessee  of,  Drum  v.  .  478 
Skipwith,  Russel  v.  .  .  241 
Smith  T>.  Evans,  .  .  .102 
Smith  v.  Martin,  .  .  .  262 
Smith,  Duffield  v.  .  .  .  302 
Smith,  Baxter  v.  .  .  .  427 
Snider,  Colhoun  v.  .  .  135 
Snyder  Lessee  of,  v.  Sny- 

der, 483 

Sparhawk  v.  Broome,       .         .  256 

Stoever  v.  Lessee  of  Whitman-,  416 

Sweitzer  Lessee  of,  v.  Meese,  500 


Tait,  Johnston  v.    .  .  .     121 

Thomas,  Adams  -v.  .  .     254 

Thomas,  Massey  v.  .  .     333 

Thompson  v.  Johnston,  .  .       68 

Toland,  Litle  v.       .  .  .83 

Trimbly,  Masteller  v.  .  .S3 


Vankirk,  Paul  v.  123 

W 

Wakely  v   Hart,      .  .         .316 

Wenberg  v.  Homer,  .'        .     307 


Vlll 


TABLE  OF  THE  CASES. 


Werdman  v.  Felmly,  .  .  39 
White  v.  Commonwealth,  .  179 
Witman  v.  Norton,  .  .  395 
Whitman  Lessee  of,  Stoever  v.  416 
Wilkins  v.  Burr,  .  .  .389 
Wolbert,  Commonwealth  v.  . '  292 


Young  v.  Commonwealth,        .      88 


Zerger  f .  Sailer.      .  24 


CASES 


IN   THE 


SUPREME  COURT 

OF 

PENNSYLVANIA. 

Lancaster  District.  May  Term,  1818. 

LONGENECKER  and  another  against  HYDE. 


Lancaster, 

IN  ERROR.  ^ur£ty> 

May  22. 

'TPHIS  was  a  writ  of  er  ror  tothe  Common  Pleas  of  Lan-  The  letter  of  a 
A     caster  county,  in  which  Court  the  plaintiffs  brought  an  g^JJJ hThad 
action  upon  the   case  against   the   defendant,  for    having  received  certain 
fraudulently  and  falsely  represented  a  certain  F.  Eckstein  JJJJal^jSfc. 
as  a  man  of  property,  integrity,  Sec.  with  a  view  to  induce  tiff  to  sell  upon 
the  plaintiffs  to  trade  with  him.    The  declaration  averred  ^™^°nc'eisof 
that  the  plaintiffs,  who  were  distillers,  did  in  consequence  that  fact  in  a  suit 
of  such  false  representation  send  three  hogsheads  of  gmj^gjlj^ 
to  Eckstein  to  be  sold  on  commission,  and  that  in  conse-  to  recover  dam- 
quence  of  his  insolvency,  they  suffered  loss,  &c.  fSy0^.^ 

sented  the  wri- 

Upon  the  trial  of  the  cause,  the  plaintiffs,  having  proved  ^b^amwfcT 
that  the  defendant  recommended  Eckstein  as  a  man  of  pro-  property,  and 
perty,  See.  offered  in  evidence,  to  prove  the  delivery  of  the1"16^11^' 
gin  to  Eckstein,  a  letter  from  him  to  them,  acknowledging 
the  receipt  of  three  hogsheads,  the  day  before,  which  he 
promised  to  account  forj  but  upon  the  defendant's  objection 
the  court  overruled  the  evidence,  and  whether  the  Common 
Pleas  were  right  was  the  question. 

Hopkins  for  the  plaintiffs  in  error.  Montgomery  contra* 

TILGHMAN  C.  J.  The  rule  of  law  is,  that  no  witness  is 
to  be  heard  but  upon  oath.  The  confession  of  a  party  is  in- 
VOL.  VI.  A 


CASES  IN  THE  SUPREME  COURT 


1813.        deed  evidence  without  oath,  because  in  its  nature  nothing 


v. 
HYDE. 


LONGENECK-  can  be  more  satisfactory.  But  Eckstein  was  no  party  to  the 
ER  et  al.  sujt)  nor  was  he  the  agent  of  the  defendant,  or  in  any  man- 
ner connected  with  him.  To  admit  his  assertions  then  with- 
out oath,  would  lead  to  dangerous  consequences.  Collusions 
might  easily  be  formed  between  plaintiffs  and  their  wit- 
nesses, who  might  easily  be  induced  to  make  declarations 
in  letters,  which  they  would  be  afraid  to  verify  on  oath  in 
open  court.  The  defendant  had  a  right  to  the  oath  of  Eck- 
stein, and  the  opportunity  of  cross-examining  him  in  pub- 
lic. There  is  nothing  in  the  case  to  take  it  out  of  the  ge- 
neral rule.  I  am  therefore  of  opinion  that  the  Court  of 
Common  Pleas  was  right  in  rejecting  the  evidence,  and  that 
judgment  should  be  affirmed. 

YEATES  J.  was  prevented  by  sickness  from  sitting  dur- 
ing this  term. 

BRACKENRIDGE  J.  was  of  the  same  opinion* 

Judgment  affirmed. 


Lancaster, 
Saturday, 
May  22. 
Replevin  lies 
against  the  She- 
riff's vendee,  to 
recover  the  pos- 
session of  chat- 
tels wrongfully 
taken  in  execu- 
tion  and  sold. 


SHEARICK  against  HUBER. 


IN  ERROR. 


THIS  was  an  action  of  replevin  brought  to  September 
1806,  by  Huber  the  plaintiff  below  against  Shearick,  for 
a  quantity  of  wheat,  which  had  been  levied  on  by  virtue  of 
an  execution  issued  at  the  suit  of  Peter  Sailer  against 
Henry  Lutz,  and  sold  by  the  sheriff  to  Shearick.  Huber 
claimed  under  a  bill  of  sale  from  Lutz  prior  to  the  execu- 
tion ;  and  the  wheat  had  been  sold  by  the  sheriff  while  grow- 
ing, and  was  taken  by  Huber  from  the  ground,  after  it  was 
reaped. 

After  the  action  had  been  depending  a  considerable  time 
in  the  Common  Pleas  of  Dauphin  county,  and  put  at  issue, 
the  defendant  in  December  1807  moved  the  court  to  quash 
the  replevin  ;  but  the  motion  was  rejected,  and  the  judg- 
ment of  the  court  on  that  point  was  the  error  now  assigned. 


OF  PENNSYLVANIA. 

Laird  and  C.  Smith  for  the  plaintiff  in  error,  argued  that 
the  case  was  within  the  act  of  3d  April  1779,  by  which 
all  writs  of  replevin  granted  for  any  owner  of  goods  levied 
or  taken  in  execution  by  any  sheriff,  are  irregular,  erroneous 
and  void,  and  may  at  any  time  after  the  service  be  quashed 
upon  motion  by  the  court  to  which  they  are  returnable; 
1  Smith's  Laws,  470;  that  the  sheriffs  vendee  stood  in  the 
sheriffs  place,  and  was  included  within  the  protection  of 
the  act;  and  that  as  in  case  of  a  reversal  of  a  judgment, 
there  was  no  restitution  of  goods  sold  under  execution,  ac- 
cording to  Hoe's  case  (a),  and  Manning's  case  (£),  so  by 
analogy,  if  a  replevin  could  not  prevent  the  sale  and  deli- 
very to  the  purchaser,  no  error  in  the  proceeding  should 
justify  its  being  used  to  unravel  the  sale.  The  owner's  re- 
medy was  trespass  against  the  sheriff. 

Elder  and  Hop&ins  contra.  1.  The  motion  was  out  of 
time,  because  the  party  by  pleading  waived  his  right  to 
quash.  2  Dall.  142.  1  Browne's  Rep.  95.  2.  The  object  of 
the  Act  of  1779  was  to  prevent  any  hindrance  to  the  sheriff 
in  the  execution  of  the  writ;  not  to  prevent  the  legality  of 
the  sale  from  being  subsequently  questioned,  in  any  and 
every  mode  which  the  injured  party  might  adopt  in  the 
case  of  a  private  wrong.  Trespass  and  trover  lie  every 
where  both  against  the  sheriff  and  his  vendee,  if  the  execu- 
tion has  been  levied  on  goods  not  belonging  to  the  defen- 
dant. 1  Bay.  317.  Shaw  v.  Tunbridge  (c),  Bloxham,  v.  Olden 
(</),  Cooper  v.  Chitty  (e),  Cro.  Eliz.  824.  Cro.  Jac.  50;  and 
in  this  state,  as  well  as  in  some  others  of  the  states,  replevin 
lies  wherever  one  is  in  possession  of  the  goods  of  another 
tortiously.  Addison's  Rep.  301.  Pangburn  v.  Patridgey  (/)• 

TILGHMAN  C.  J.  There  is  no  doubt  but  replevin  is  the 
proper  form  of  action;  for  although  in  England  this  action 
has  been  generally  confined  to  cases  of  goods  distrained  for 
rent,  yet  with  us,  it  has  been  used  in  all  cases,  where  chat- 
tels in  the  possession  of  one  person  have  been  claimed  by 
another.  The  motion  to  quash  was  founded  on  an  act  of  as- 


1813. 


SHEAHICK 
v. 

HUBER. 


(a)  5  Rep.  90.  6. 
(6)  8  Rep.  96.  b. 
(c)  2  Bl  Rep.  1064. 


(d)  1  Burr.  26. 

(e)  1  Burr.  30. 

143. 


4 


CASES  IN  THE  SUPREME  COURT 


V> 

HUHER. 


1813.  sembly  passed  3d  April  1779.  The  preamble  recites  that 
SHKARIOK  writs  of  replevin  had  of  late  been  granted  for  goods  "  taken 
"  in  execution,  and  for  fines  and  penalties  legally  incurred 
"  and  due  to  this  commonwealth,  to  the  delay  of  public  jus- 
"  tice,  and  to  the  great  vexation  of  the  officers  concerned 
*'  in  taking  and  levying  the  same."  It  is  then  enacted  that 
all  writs  of  replevin  granted  or  issued  for  any  owner  of 
goods,  &c.  "  levied,  seized  or  taken  in  execution^  or  by  dis- 
"  tress  or  otherwise"  by  any  sheriff,  constable,  collector  of 
taxes,  or  other  officer,  acting  in  their  several  offices,  under 
the  authority  of  the  state,  are  irregular^  erroneous  and  voidt 
and  that  all  such  writs  may  and  shall  at  any  time  after  ser- 
vice be  quashed  upon  motion,  by  the  Court  to  which  they 
are  returnable,  &c. 

No  judgment  can  be  executed  if  the  defendant  or  any 
other  person  is  permitted  to  take  the  goods  out  of  the  hands 
of  the  sheriff,  after  they  are  taken  in  execution.  The 
sheriff  is  commanded  by  the  writ  of  Ji»  fa.  to  make  the 
money  of  the  goods  of  the  defendant,  and  bring  it  into 
Court.  But  he  cannot  make  the  money  if  the  goods  are  not 
in  his  possession.  There  is  no  doubt  therefore,  but  that  the 
Court  issuing  the  writ  might  by  its  own  authority  prevent 
the  defendant  in  the  action  from  impeding  the  execution  by 
a  replevin.  Whether  a  third  person  whose  goods  were  seized 
when  in  the  possession  of  the  defendant,  might  be  also  pre- 
vented, is  a  question  which  it  is  unnecessary  to  decide,  as 
the  act  of  assembly  certainly  comprehends  the  case.  The 
object  of  the  act  was  to  provide  for  the  complete  execution 
of  the  writ.  No  person  whatever  can  obstruct  the  sheriff's 
sale  by  a  replevin.  The  goods  are  in  the  custody  of  the  law, 
and  there  they  are  to  remain  till  the  sheriff  has  sold  them  and 
delivered  the  possession  to  the  purchaser.  That  being  done, 
the  object  of  the  law  is  accomplished,  and  every  man  who 
has  claims,  is  left  to  his  usual  remedy.  There  is  no  intima- 
tion in  any  part  of  the  act,  that  the  sheriff  can  transfer  to 
the  purchaser  a  better  right  than  the'  defendant  possessed ; 
and  it  would  have  been  most  unjust  if  there  had,  for  there 
can  be  no  reason  why  one  man's  goods  should  be  applied 
without  his  consent  to  the  payment  of  the  debts  of  another. 
It  is  not  questioned  but  that  the  person  who  claims  the 
goods  may  support  an  action  of  trover  against  the  sheriff's 


OF  PENNSYLVANIA, 
vendee.    Why  then  may  he  not  maintain  a  replevin?  What       1813. 


advantage  is  it   to  the  defendant  to  be  protected  against  a    SHEARICK 
replevin,  while  he  is  left  open  to  other  actions?    On  the          v. 
other  hand,  it  may  be  of  use  to  the  plaintiff  to  have  a  re-      HUBER. 
medy  for  the  specific  restitution  of  goods  on  which  he  may 
set  a  great  value  for  causes  peculiar  to  himself.  Family  pic- 
tures, and  many  articles  of  furniture  of  little  value  in  them- 
selves, may  be  inestimable  to  the  person  who  claims  them. 
Upon  the   whole  I  am  of  opinion  that  inasmuch  as  the  re- 
plevin in  this  case  was  not  issued  until  after  the  sheriff  had 
completely  executed  his  office,  it  did  not  come  within  the 
scope  of  the  act  of  assembly,  and  the  Court  was  right  in  re- 
fusing to  quash  it.     The  judgment  should  therefore  be 
affirmed. 


BRACKENRIDGE  J.  concurred. 


Judgment  affirmed. 


6b  5 
3sr562 
2wh293 
X)  505 


O 


The  Commonwealth  ex  relat.  WITHER  againstThe 
Commissioners  of  Lancaster  County. 

N  the  17th  of  this  month,  C.  Smith  on  behalf  of  Air  a-  Saturday,' 
ham  Witmer,  obtained  a  rule  on  the  commissioners  of  ^hl  Supreme 

Lancaster  county,  to  shew  cause  why  a  mandamus  should  notCourt  may  IS?ue 
J  *  ,a  mandamus  in 

issue  against  them,  to  compel  them  to  make  out  an  order  any  of  the  Dis- 

on  the  treasurer  of  the  said  county  in  favour  of  Witmer 

58,444  dollars  44  cents,  the  amount  of  the  valuation  . 

.  prohibits  that 

stone  bridge  over  the  river  Conestoga.  Courtfromtrying 

issues  of  fact  ia 
Bank  ;  because  as 

The  commissioners  shewed  for  cause  a  variety  of  mat-  the  return  to  the 

.....  .  rr.,  .    mandamus  must 

ters,  two  only  of  which  it  is  material  to  state.  1.  That  this  be  received  as 

Court  had  no  jurisdiction,  the  writ  of  mandamus  being  in 

its  nature  an  original  action,  which  could  only  issue  from  action  for  a  false 

........  i      ,.  return  which  may 

a  Court  having   original  jurisdiction)  and  this  court  had  be  brought  ia 

some  other  court, 
the  Supreme 

Court  may  proceed  to  the  end  of  the  mandamus,  without  trying  any  fact. 

A  mandamus  is  not  a  civil  case  within  the  19th  section  of  the  act  of  24th  February,  1806,  the  in- 
tent  of  that  section  being,  to  take  away  the  original  jurisdiction  in  civil  actions,  of  which  the  infe- 
rior Courts  had  jurisdiction,  and  not  to  take  it  away  in  cases  of  mandamus  and  the  like,  of  which 
those  Courts  had  no  jurisdiction. 

The  Court  will  not  grant  a  mandamus  to  the  County  Commissioners  to  draw  an  order  upon  the 
treasury,  if  there  is  no  money  in  the  treasury  to  pay  it. 


6  CASES  IN  THE  SUPREME  COURT 

1813.        no  original  jurisdiction  of  any  civil  case  in  this  district,  nor 

COMMON-     cou^  **  try  tne  issue  of  fact  which  might  grow  out  of  the 

WEALTH      return.  2.   That  the  treasurer  had  not  in  his  hands  any  sum 

v.  of  counted  money  equal  to  the  sum  for  which  the  order  was 

COMMISSION-  d> 

ERS  OF 

LANCASTER  _       .         . 

COUNTY.         ^*  ^mit^  an"  Hopkins  for  the  relator. 

Rogers  and  Duncan  contra. 

TILGHMAN  C.  J.  A  rule  having  been  granted  on  the 
commissioners  of  Lancaster  county,  to  shew  cause  why  a 
mandamus  should  not  issue,  commanding  them  to  draw  an 
order  on  the  treasurer  of  the  said  county,  in  favour  of 
Abraham  Witmer1  for  58,444  dollars  44  cents  the  amount  of 
the  valuation  of  the  stone  bridge  over  the  river  Conestoga, 
the  commissioners  appeared,  and  shewed  cause  upon  which 
we  are  now  to  decide. 

On  the  22d  September  1787",  an  act  of  assembly  was 
passed,  authorizing  Abraham  W'ttmer  to  build  a  bridge 
over  the  Conestoga,  and  vesting  the  property  thereof,  when 
built,  in  the  said  Abraham  Witmer  his  heirs  and  assigns 
forever,  with  permission  to  take  toll  at  the  rate  fixed  by 
the  said  act.  But  the  legislature  reserved  a  power  when- 
ever it  should  seem  expedient  to  them  to  make  the  said 
bridge  a  free  bridge,  to  appoint  three  persons  commissioners 
on  the  part  of  the  Commonwealth,  in  conjunction  with  three 
others  to  be  appointed  by  the  said  Abraham  Wi  tmer  his 
heirs  or  assigns,  who  or  any  four  or  more  of  whom  should 
estimate  "  what  sum  or  sums  of  money  the  said  Abraham 
"  Witmer  his  heirs  or  assigns  should  be  entitled  to  receive, 
"  as  a  compensation  for  his  trouble  and  expenses  in  building 
"  and  maintaining  the  said  bridge,  which  sum  or  sums 
"  should  be  paid  to  him  or  them  out  of  the  treasury  of  the 
"  Commonwealth"  On  the  4th  April  1798,  a  supplement  to 
this  act  was  passed.  The  preamble  recites  that  Abraham 
Witmer  had  represented  to  the  legislature,  that  the  bridge 
erected  by  him  by  virtue  of  the  original  act,  having  been 
built  without  a  view  to  the  turnpike  road  which  was  after- 
wards established,  was  not  constructed  of  materials  suffi- 
ciently durable,  nor  calculated  to  sustain  the  heavy  burthens 
which  were  daily  passing,  and  had  praye  d  the  legislature 


OF  PENNSYLVANIA.  7 

to  pass  a  law  to  authorize  him  to  erect  a  bridge  over  the        1813. 
said  creek,  upon  that  permanent  and  extensive  plan,  which  ""COMMON- 
the  importance  of  the  situation  required.  It  is  then  enacted      WEALTH 
that  the  said  Abraham  Witmer  his  heirs  and  assigns  may          v- 
build  support  and  maintain  a  permanent  bridge  over  the   COMMISSION' 
said  creek,  on  any  unoccupied  part  of  the  great  road  lead-   LANCASTER 
ing  from  Philadelphia  to  Lancaster  immediately  above  and     COUNTY. 
on  the  north  side  of  his  present  bridge,  and  to  take  toll  at 
the  same  rates  as   were  established  by  the    original  act. 
The  fifth   section  provides  that    whenever  the  legislature 
should   deem  it  expedient  to  make  the   said  bridge  a  free 
bridge,  three   commissioners  should  be  appointed  by  the 
legislature  and  three  by  the  said  Abraham  Witmer  his  heirs 
or  assigns,  who  or  any  four  or  more  of  whom  should  estimate 
"  what  sum  or  sums  of  money  the  said  Abraham  Witmer 
"  his  heirs  or  assigns  should  be  entitled  to  have  and  receive 
"for  his  right  and  title  in  and  to  the  said  bridge,  which  sum 
**  or  sums  so  estimated  should  be  paid  to  him  or  them  out 
44  of  the  treasury  of  the  Common-wealth^   On  the  2d  April 
1811,  an  act  was  passed  giving  to  the  commissioners  of  Lan- 
caster county  10,418  dollars  34  cents,  part  of  a  debt  due  to 
the  Commonwealth  from  the  estate  of  William  Henry,  to  be 
applied  towards  payment  for  Abraham  Witmer's  bridge.    On 
the  17th  January   1812,  the  commissioners  of  Lancaster 
county  represented  to  the  legislature,  that  a  great  majority 
of  the  county  wished  for  a  free  bridge,  that  they  had  applied 
to  Abraham  Witmer  who  refused  to  deal  with  them,  alleg- 
ing that  they  had  no   authority  to  purchase.     On  the  27th 
March  1812,  an  act  was  passed,  "  to  purchase  and  make  free 
u  the  bridge  over  the  river  Conestoga  built  by  Abraham  Wit- 
u  mer  in  the  county  of  Lancaster"  By  this  act  three  commis- 
sioners were  named  on  the  part  of  the  Commonwealth,  who 
in  conjunction  with  three  others  to  be  named  by  Abraham 
Witmer   (not  being   citizens  of  Lancaster  county)  were  to 
estimate  on  oath  "  the  sum  or  sums  the  said  Abraham  Wit- 
"  mer  his  heirs  or  assigns  should  be  entitled  to  receive  ac- 
'*  cording  to  the   true  intent  and  meaning  of  an  act  passed 
"  22d  September  1 787,  and  a  supplement  passed  the  4th  April 
" 1798,  for  the  stone  bridge  across  the  Conestoga  river,  built 
"  and  owned  by  the  said  Witmer."     The    commissioners 
appointed  by  this  act,  having  been  notified  by  the  commia- 


8  CASES  IN  THE  SUPREME  COURT 

1813.       sioners  of  Lancaster  county,  were  to  fix  on  a  time  and  place 
™V.        ~        of  meeting,  notice  of  which  was  to  be  given  to  Abraham 
WEALTH      Witmer.    If  four  or  more  of  these  commissioners  could  not 
v.  agree,  the  governor  was  to  appoint  a  seventh  person,  and 

COMMISSION- tne  sum  awarded  by  a  majority  of  these  was  to  be  paid  to 
LANCASTER  ^e  sai<*  -Abraham  Witmer  his  heirs  or  assigns  "  out  of  the 
COUNTY.  *'  treasury  of  Lancaster  county,  by  warrant  drawn  by  the 
"  commissioners  of  said  county  thereon."  If  Abraham  Wit- 
mer should  refuse  to  receive  the  compensation  awarded  by 
the  commissioners,  for  ten  days  after  tender  thereof  made 
to  him  by  the  county  commissioners,  he  was  to  be  debarred  of 
the  right  of  taking  toll.  If  the  sum  awarded  exceeded  1O,  418 
dollars  34  cents,  then  the  commissioners  of  Lancaster  county 
after  having-  paid  the  whole  sum  awarded,  were  authorized 
to  receive  toll  until  they  should  be  reimbursed  the  amount  of 
•what  they  had  paid  over  and  above  the  said  1O,418  dollars 
34  cents,  after  which  the  said  bridge  was  to  be  free.  Abraham 
Witmer  having  received  notice  from  the  commissioners  of 
Lancaster  county,  named  three  commissioners  on  his  part. 
The  first  commissioners  met  and  made  an  award  that  the  sum 
of  58,444  dollars  44  cents  should  be  paid  to  Abraham  Wit- 
mer. The  commissioners  of  Lancaster  county  have  refused 
to  draw  an  order  for  this  sum,  and  Abraham  Witmer  now 
applies  for  a  mandamus  to  compel  them. 

Many  objections  are  made  to  the  issuing  of  this  writ.  The 
first  goes  to  the  jurisdiction  of  this  Court,  and  is  founded 
on  an  act  passed  24th  February  1806,  by  the  nineteenth 
section  of  which  it  is  enacted,  that "  the  Supreme  Court  shall 
"have  no  original  Jurisdiction  in  civil  cases."  Taking  these 
words  in  their  greatest  possible  extent,  they  might  compre- 
hend a  mandamus,  for  it  is  an  original  writ  applied  as  a 
remedy  in  a  civil  case.  But  to  construe  words  in  their 
largest  sense,  is  not  always  to  attain  the  intent  of  the  legis- 
lature. At  the  time  this  law  was  passed,  the  Supreme  Court 
were  overwhelmed  with  business  arising  from  civil  actions 
commenced  in  the  city  and  county  of  Philadelphia.  Before 
the  year  1786,  no  such  actions  were  commenced  in  this 
Court,  and  it  was  judged  proper  to  place  its  jurisdiction  on 
the  same  footing  that  it  formerly  stood.  This  could  pro- 
duce no  injury  to  the  public,  because  the  Common  Pleas 
had  jurisdiction  of  all  actions  which  were  forbidden  to  be 


OF  PENNSYLVANIA.  9 

commenced  in  the  Supreme  Court.  But  it  would  have  been       1813. 

productive  of  very  ill  consequences  to  take  from  the  Su-  COMMON- 

preme  Court  their  jurisdiction    in    cases  of  mandamus  and  WEALTH 
other  writs  of  like  nature,  because  the  Common  Pleas  had  v' 

no  right  to  issue  them,   and  thus  there  would  have  been  a 

•  Tt  *      *  f  1  ERS     Or 

defect  of  justice  on  important  occasions.  By  civil  cases  then  LANO  ASTER 
is  to  be  understood  civil  actions,  which  in  common  parlance  COUNTY. 
do  not  comprehend  writs  of  mandamus,  certiorari,  habeas 
corpus,  &c.  This  was  the  construction  put  upon  the  act  im- 
mediately after  its  passage  and  ever  since.  The  jurisdiction 
has  been  repeatedly  exercised  and  never  before  questioned. 
And  upon  one  occasion  it  was  expressly  recognized  by  a 
resolution  of  the  legislature,  in  which  they  directed  that 
the  Attorney  General  should  appear  in  a  case  of  mandamus, 
and  support  the  right  of  the  Commonwealth  to  a  tract  of 
land  called  the  mammoth  farm  in  Luzerne  county.  I  have 
thought  it  proper  to  speak  explicitly  on  the  construction  of 
the  19th  section  of  the  act  of  24th  February  18O6,  al- 
though that  section  is  repealed  by  the  5th  section  of  the  act 
of  20th  March  1810. 

It  has  been  urged  further  against  issuing  writs  of  man- 
damus, that  this  Court  have  no  power  to  try  an  issue  in  fact 
out  of  the  county  of  Philadelphia.  This  is  true,  and  upon 
that  principle  the  Court  refused  to  grant  an  information  in 
nature  of  quo  warranto  in  the  case  of  the  Commonwealth  v. 
Smith  at  Pittsburgh.  But  the  case  of  mandamus  is  different 
from  quo  warranto.  We  may  proceed  to  the  end  of  it  with- 
out trying  any  fact.  The  return  to  the  first  mandamus  must 
be  received  as  true,  until  it  shall  be  proved  false  in  an  action 
for  a  false  return,  which  may  be  brought  in  some  other 
Court.  If  it  contains  matter  sufficient  to  prevent  a  pe- 
remptory mandamus,  the  matter  ends  there  for  the  present ; 
if  not,  a  peremptory  mandamus  issues. 

Considering  the  objection  to  our  jurisdiction  then  as 
groundless,  we  must  examine  the  cause  shown  against  the 
exercise  of  it  in  this  particular  case.  We  are  called  on  to 
issue  a  mandamus,  to  compel  the  commissioners  of  Lan~ 
caster  county  to  draw  an  order  on  the  treasury  for  the  sum  of 
58,444  dollars  44  cents.  The  commissioners  say  they  ought 
not  to  draw  the  order,  because  there  is  not  money  in  the  trea- 
sury sufficient  to  answer  it.  No  doubt  they  speak  the  truth, 
VOL.  VI.  B 


10  CASES  IN  THE  SUPREME  COURT 

1813.        and  it  appears  to  be  cause  insurmountable  against  issuing  the 

COMMON-     w"u  Whether  the  commissioners  have  done  wrong  in  not 

WEALTH      taking    measures  to  have  the  money  placed  in  the  treasury, 

v.          is  not  now  the  question.  If  they  have,  we  have  no  right  to 

COMMISSION- punjsj,  them  in  this  way.  What  would  it  signify  to  draw  an 

EH.S   OK 

LANCASTER  or^er  on  an  emPty  treasury?  The  treasurer  would  refuse  pay- 
COUNTY.  ment,  and  there  the  matter  would  end.  We  know  very  well 
that  no  money  can  come  into  the  treasury  but  by  a  tax  on  the 
county  ',  and  that  tax  the  commissioners  cannot  lay  without 
the  co-operation  of  other  persons,  even  supposing  that  the 
act  for  the  purchase  of  the  bridge,  authorizes  the  laying  of 
a  tax  for  the  purpose  of  paying  Mr.  Witmer.  If  Mr.  Wit- 
mer^s  object  be  attainable  by  way  of  mandamus,  the  first  step 
must  be  to  order  the  proper  persons  to  lay  a  tax  ;  and  it 
must  be  laid  for  the  whole  sum  at  once,  for  the  act  for  the 
purchase  of  the  bridge  makes  no  provision  for  partial  pay- 
ments. There  can  be  no  apportionment  of  the  toll ;  Witmer  is 
entitled  to  take  it  all  until  he  receives  payment  of  the  whole 
sum  awarded.  In  short  the  payment  of  so  large  a  sum  does 
not  seem  to  have  been  an  event  contemplated  by  the  legis- 
lature ;  and  whether  this  Court  would  think  itself  justified  in 
compelling  the  county  to  raise  it,  without  an  act  of  assembly 
explicitly  directing  it,  is  a  point  on  which  I  have  not  made 
up  my  mind.  I  recommend  it  to  the  serious  consideration 
however,  of  Mr.  Witmer  and  his  counsel,  before  another 
application  is  made  to  this  Court.  There  are  other  impor- 
tant points  which  have  been  well  discussed  on  the  argu- 
ment by  the  counsel  on  both  sides,  on  which  I  deem  it 
premature,  at  the  present  moment,  to  intimate  any  opinion. 

C' 

BRACKENRIDGE  J.  No  subordinate  Court  under  the 
judicial  system  of  this  state  ever  had  any  power  to  issue  a 
writ  of  mandamus.  This  King's  Bench  power  is  in  the 
Supreme  Court  alone.  The  act  of  the  legislature  taking 
away  the  original  jurisdiction  of  the  Supreme  Court,  can 
respect  only  those  powers  which  the  subordinate  Courts 
could  exercise.  With  regard  to  these,  the  Supreme  Court 
may  or  may  not  have  original  power  as  the  legislature  may 
from  time  to  time  direct  ;  and  in  doing  which  they  are  not 
to  be  understood,  of  speaking  as  those  powers  which  were 
never  in  any  Court  else  to  exercise.  They  are  to  be  consi- 


OF  PENNSYLVANIA.  11 

dered  as  having  a  reference  to  the  jurisdiction  of  the   Su-        1813. 
preme  Court,  where  by  removal,  appeal,  or  writ  of  error,      COMMON- 
they  have   cognizance,  or  may  have    it  specially  given  to       WEALIH 
them  in  extraordinary  cases,  as  co-ordinate  with  the  Courts  v. 

of  inferior  jurisdiction.  The  term  original,  or  appellate,  or  COMMISSION- 
of  revision,  has  no  relation  to  a  province  in  which  the  LANCASTER 
Supreme  Court  alone  ever  had  power.  If  under  the  term  COUNTY. 
original  these  high  powers  stiled  prerogative  are  taken 
away  as  is  alleged,  are  they  given  in  the  first  instance  to 
the  subordinate  Courts  ?  This  not  being  the  case,  it  must 
have  been  the  intention  of  the  legislature,  according  to  a 
contrary  construction,  to  annihilate  all  such  powers  in  the 
judicial  authority  any  where.  This  unless  by  express  words 
can  never  be  supposed  to  have  been  intended.  I  must  there- 
fore be  of  opinion  that  this  Court,  notwithstanding  any 
seeming  implication  or  general  term  in  the  act  of  assembly, 
retains  its  usual  jurisdiction  in  these  pre-eminent  cases 
which  no  other  Court  can  exercise.  But  an  objection  made 
to  the  exercise  of  this  power  in  the  present  case,  is,  that  as 
in  the  case  of  a  writ  de  quo  warranto,  so  here  they  may  be 
stopped  by  the  traverse  of  a  fact,  which  from  the  present 
constitution  of  the  Court,  they  have  not  the  power  to  try. 
But  in  the  exercise  of  the  jurisdiction  by  mandamus,  in 
contemplation  of  law  no  fact  can  be  traversed,  but  the 
return  must  be  taken  as  true.  An  action  may  lie  for  a  false 
return,  but  not  on  an  issue  to  be  directed  by  them  ;  so  that 
there  is  nothing  in  this  objection. 

A  second  occurs  which  has  relation  to  the  common  law, 
and  takes  away  the  remedy  in  this  particular  case.  It  is 
that  the  party  applying  for  the  mandamus  has  another  re- 
medy. It  would  seem  to  me  that  he  has  by  his  own  act^  and 
without  application  to  the  law ;  which  is  by  keeping  posses- 
sion of  his  property,  and  he  may  sue  the  commissioners  for 
damages  for  the  trouble  they  have  given  him.  This  sup- 
poses that  he  may  bring  a  suit  against  the  commissioners 
even  on  the  award  itself  to  compel  the  performance  of  it. 
In  this  therefore  he  has  another  remedy.  But  to  what  pur- 
pose will  it  be  for  him  to  bring  a  suit,  where  the  interested 
are  judges  ?  Such  remedy  maybe  considered  as  none.  He  is  in 
no  worse  situation  however  than  others  are  who  have  to  do 
with  commissioners,  and  this  has  never  been  given  as  an 


1813. 


COMMON- 
WEALTH 

v. 
COMMISSION 

ERS  OF 

LANCASTER 

COUNTY. 


CASES  IN  THE  SUPREME  COURT 

answer  to  all  who  have  a  right  of  action,  and  might  with 
equal  reason  apply  to  this  Court  for  their  extraordinary  in- 
terposition. But  supposing  this  to  be  the  case,  with  regard  to 
which,  I  will  acknowledge  that  under  the  special  circum- 
stances I  have  not  the  most  decided  opinion,  the  issuing  a 
mandamus  is  discretionary  in  the  Court ;  and  it  would  seem 
from  the  cause  shewn  by  the  commissioners,  taking  it  to  be 
true,  the  principle  of  estimation  of  the  sum  awarded  is  not 
correct,  and  according  to  the  stipulations  of  the  contract.  It 
is  not  th  f  fee  simple  right  in  the  bridge  that  is  to  be  pur- 
chased^ but  a  privilege  that  is  to  be  redeemed  on  paying  the 
expense  and  trouble  in  constructing  it ;  and  that  would  seem 
to  be  what  it  cost  at  the  time  of  erecting  it,  taking  the 
superintendance  into  view,  making  an  allowance  also  for 
the  depreciation  of  the  current  medium  for  the  present  time. 
If  the  real  value  of  money  now  is  to  the  nominal  as  one  to 
two,  then  give  double  of  what  the  bridge  cost  at  the  time  it 
was  built.  But  the  highest  toll  of  the  bridge  in  any  one  year, 
and  such  a  principal  as  would  produce  the  interest,  would 
seem  to  be  an  incorrect  ratio  of  estimation.  There  is  there- 
fore a  bar  to  the  discretion  of  the  Court  in  issuing  a  man- 
damus, and  the  carrying  this  award  into  effect.  I  am  there- 
fore of  opinion  to  refuse  the  writ. 

Rule  discharged. 


HA  AK  against  BREIDENB  ACH  and  another,  executors 
of  BREIDENBACH. 

Lancaster, 

Saturday,  IN  ERROR. 

May  29. 

Short  pleas  are  rpi HIS  was  a  writ   of  error  to    the  Common  Pleas  of 

admissible  only  by 

consent.  If  either    •*•      Dauphin   COUnty. 

adversaryTodraw     ^  was  argued  fu%  in  this  Court,  upon  a  variety  of  points 
up  his  plea  at      on  which  no  opinion  was  given.  All  that  is  material  in  the 

I  A  rjr  c    H  n  ( 1  lie  r  c  ~ 

fuses' it  is  good    case  will  be  collected  from  the  opinion  of  the  Chief  Justice. 

cause  of  special 

deTiie7ffice  of  a     Goodwin  and  Duncan  for  the  plaintiff  in  error. 

ttilicet  is  to  ren- 
der something          Elder  and  Hopkins  contra. 

more  certain, 

which  was  expressed  in  doubtful  or  general  terms  before.  Tf  instead  of  doing  that,  it  contradicts  or 
destroys  whut  went  before,  it  must  be  rejected  altogether  ;  e.g.  an  award  that  defendant  shall  pay 
law.  in  two  years,  scilicet  in  yearly  payments  of  30/.  each,  is  to  pay  the  whole  sum  in  two  years. 
To  debt  upon  an  arbitration  bond,  the  defendants  pleaded  no  award  and  a  recovery  by  the  plain- 
tiff 


OF  PENNSYLVANIA.  13 

TILGHMAN  C.  J.  This  suit  was  commenced  in  the  Court  1813. 

of  Common  Pleas  of  Dauphin  county,  by  Philip  Breiden-  HAAK 

bach  against  Michael  Haak.  The  original  plaintiff  died  after  v. 

the   commencement  of  the  suit,   and  the  now  plaintiffs  his  BREIDEN* 

BACH 

executors  were  substituted  in  his  place  by  virtue  of  an  act        et  aj 
of  assembly  providing  for  such  cases.  The  pleadings  are 
entered  in  short  minutes,   and  I  have  found  less  difficulty  tiff  for  the  same 
in  deciding  the  cause,  than  in  understanding  the  record,  action/The  a  ward 
which  is  confused  to  an  extraordinary  degree.  It  is  an  ac-  *e*  °"1  was  of  the 
tion  of  debt  on  an  arbitration  bond,  dated  4th  August  1786.  178§:  and  on  the 


The  defendant  pleaded;  1.  No  award.  2.  That  the 

tors   had   misbehaved    themselves   in  making  the  award.  denct!  of  »  reco- 

°       f  very  in  a  former 

3.  Recovery  by  the  plaintiffs  for  the  same  cause  in  another  suit,  in  which  the 

•     '  .1        r>  f    r>  T»I  /-declaration  stated 

action  on  the  case,   m  the   Court  or  Common  Pleas  of  tne  same  case,  to 
Dauphin  county.  To  the  first  plea  the  plaintiff  replied  an**'  fjJjj^JJ 
award  which  was  set  forth  in  haec  verba^  and  assigned  for  mill,  erected  on 
breach  that  the  defendant  had  not  paid  the  sum  of  120/.  men-  1735,  and  c'cmti- 
tioned  in  the  award.  To  the  second  plea  the  plaintiff  replied  n"ed  to,the.^L 

November  1788. 

that  the  arbitrators  had  not  misbehaved  themselves,  and  to  the  The  Court  below 
third  plea  he  replied,  "that  there  was  no  recovery  for  the 


same  cause."  It  is  then  stated  in  the  record  that  there  were  plaintiff  from  now 

giving  evidence  to 

"issues,  and  rule  for  trial.  I  presume  from  the  judge's  shew,  that  upon 
charge  that  issue  was  also  joined  on  the  plea  of  payment,  ease*™  gave  no 
with  leave  to  give  the  special  matter  in  evidence.  It  has  evidence  of  da- 

.  .  .      „  .  mage  done  during 

always  been  the  desire  of  this  Court  to  support  the  judg-  so  much  of  the 
ments  of  the  inferior  Courts,  which  have  been  given  after  x™,?r  as  'was  co- 
trial  of  the  merits.  In  order  to  accomplish  this,  we  consi-  vered,bJ'.ther 

award,  viz.   from 

der  the  short  entries  of  pleadings  in  the  same  light,  as  if  they  loth  of  Jiugutt 
were  formally  drawn  up,  provided  there  is  enough  to  shew^,^,s°1786° 
the  meaning  o£  the  parties.  In  the  present  case  it  is  hard  toan(J  a.ccortiingiy 

permitted  him  to 

say  whether  the  plea  of  a  former  recovery,  &c.  was  intended  give  such  evi- 
to  be  tried  by  Court  or  jury.  In  fact  it  seems  to  have  been  ^me  time  they 
tried  by  both,  first  by  the  jury  and  afterwards.  by  the  Court.  ]?oul;l,notIi)ermit 

*  .  *-ne  defendants 

Both  tribunals  however  agreed  in  deciding  against  the  plea,  to  shew  that  in 

rfi  j-  i  i  i         i  the  former  suit, 

Ihe  matter  in  dispute  between  the  parties,  is  the  damage  the  plaintiff  gave 
done  to  the  plaintiffs  bv  the  erection  of  a  dam  by  the  de-  e"iienceofda- 

r  -^  J  mages  sustained 

fendant  on  his  own  land,  in  consequence  of  which  a  stream  of  during  the  whole 

iii-i  n  i      term  laid  in  the 

water  was  thrown  back  in  such  a  manner  as  to  overflow  the  Nmr,  Held,  that 
plaintiff's  land,  and  injure  his  bark  mill  and  spring,  &c.  Athis  waser<™-. 
former  action  had  been  brought,  in  which  the  plaintiff  com- 
plained of  the  damage  done  by  the  erection  of  the  dam  on 


CASES  IN  THE  SUPREME  COURT 


181;}. 


HAAK 

v. 

BREIDEN- 
BAOH 
et  al. 


the  10th  day  of  August  1785,  and  the  continuance  of  it 
until  the  3d  November  1788.  The  arbitration  bond  was 
founded  on  the  same  dispute.  The  defendant  alleges,  that 
the  arbitrators  gave  damages  for  the  same  nuisance  down 
to  the  4th  August  1786,  so  that  the  plaintiff  if  he  succeeds 
in  this  action,  will  recover  damages  twice  for  the  continu- 
ance of  the  nuisance  from  the  10th  August  1785,  to  the 
4th  August  1786.  The  president  of  the  Court  of  Common 
Pleas  seems  to  have  thought  that  this  was  the  real  point  of 
dispute,  and  this  he  submitted  to  the  jury  as  a  matter  of 
fact ;  for  the  Court  suffered  the  defendant  to  give  in  evidence, 
the  record  of  the  former  action  under  his  plea  of  payment. 
The  charge  of  the  president  is  entered  at  large  in  the  mi- 
nutes, and  that  part  which  appears  to  me  most  material,  for 
the  decision  of  this  cause,  is  in  substance  as  follows.  "  It  is 
"  contended  for  the  plaintiff  that  the  suit  of  November  1788, 
"was  not  for  the  original  matter  which  was  determined  by 
"the  arbitrators,  but  for  only  a  continuance  of  the  nuisance 
"  subsequently  to  the  award,  and  for  the  damages  sustained 
"  by  the  plaintiffs  after  the  date  of  it  j  that  although  the  de- 
"  duration  states  the  erection  of  the  nuisance  on  the  10th 
"August  1785,  and  the  continuance  of  it  from  that  period 
"  to  the  time  of  purchasing  the  writ,  yet  that  the  actual  claim 
"  of  the  plaintiff,  and  the  verdict  rendered  by  the  jury,  did  not 
"  include  damages  for  any  injury  sustained,  previously  to  the 
"  date  of  the  award.  We  are  decidedly  of  opinion,  that,  not- 
"  withstanding  the  time  stated  in  the  declaration,  the  plaintiff 
"  was  at  full  liberty  to  give  evidence  of  damages  done  during 
"  part  of  the  time  laid,  and  the  plaintiff's  counsel  contend 
"that  in  that  case  the  plaintiff  did  give  evidence  of  damages 
41  sustained  for  a  period,  which  did  not  overreach  the  date 
"  of  the  award.  If  this  were  the  case,  of  which  you  are  to  judge 
"from  the  facts  adduced  in  testimony,  then  the  plaintiff  has 
"not  received  payment  or  satisfaction  for  any  part  of  his 
"demand,  and  you  will  render  a  verdict  for  the  amount 
"  awarded,  with  interest  from  the  date  of  it  to  this  time." 

It  appears  clearly  from  this  part  of  the  charge,  that  the 
jury  were  left  to  decide  from  the  facts  given  in  evidence ; 
and  it  also  appears,  that  when  the  defendant  offered  evi- 
dence to  prove  that  in  the  former  suit,  the  plaintiff  gave 
evidence  of  damage  sustained  during  the  whole  time  laid  in 


OF  PENNSYLVANIA. 


15 


the  declaration,  and  that  the  verdict  was  given  accordingly, 
the  Court  rejected  the  evidence ;  so  that  the  plaintiff  was 
permitted  to  give  evidence  on  the  same  point  on  which  the 
defendant's  evidence  was  refused.  This  cannot  be  right. 
Either  the  record  was  the  only  admissible  evidence  of  the 
proceedings  in  the  former  suit,  or  it  was  not.  If  it  was, 
neither  plaintiff  nor  defendant  should  have  been  permit- 
ted to  go  out  of  it.  But  at  all  events,  what  was  permitted  to 
one  should  have  been  permitted  to  the  other.  This  alone  is 
reason  sufficient  for  reversing  the  judgment  and  ordering  a 
venire  de  nova.  It  was  said  by  the  defendant's  counsel  on 
the  argument,  that  the  plaintiff  gave  no  evidence  to  shew 
the  time  for  which  he  recovered  in  the  former  suit.  But  I 
cannot  reconcile  this  with  the  charge  of  the  Court.  There 
was  another  part  of  the  president's  charge  complained  of 
by  the  defendant.  He  gave  his  opinion  that  when  the  arbi- 
trators awarded  that  the  defendant  should  pay  12O/.  in  two 
years,  viz.  in  yearly  payments  of  30/.  each,  the  true  con- 
struction was  that  the  whole  sum  should  be  paid  in  two 
years,  and  the  matter  contained  in  the  scilicet  rejected} 
whereas  according  to  the  defendant's  construction,  four 
years  should  be  given  for  payment.  But  I  think  the  charge 
was  right.  The  business  of  a  scilicet  is  to  render  something 
more  clear  or  certain  which  was  expressed  in  doubtful  or 
general  terms  before.  If  instead  of  doing  this  it  contradicts 
or  destroys  what  went  before,  it  must  be  rejected  altogether. 

I  cannot  forbear  expressing  my  hope  that  before  this  ac- 
tion is  brought  to  trial  again,  the  pleadings,  except  the  de- 
claration, will  by  permission  of  the  Court  of  Common  Pleas 
be  made  de  novo,  and  that  they  will  be  drawn  up  in  form  so 
as  to  leave  no  room  to  doubt  what  is  their  meaning.  If  the 
defendant  intends  to  contest  the  validity  of  the  award,  his 
way  is  to  plead  no  award;  the  plaintiff  must  then  reply  and 
set  forth  the  award  and  breach,  upon  which  the  defendant 
must  demur;  short  pleas  ought  not  to  be  received  but  by 
consent.  If  either  party  requests  his  adversary  to  draw  up 
his  plea  at  large  and  it  is  refused,  it  will  be  good  cause  of 
demurrer,  assigning  the  same  specially  for  cause  of  demur- 
rer. I  am  of  opinion  on  the  whole  that  the  judgment  shoutd 
be  reversed,  and  a  venire  facias  de  novo  awarded. 

BRACKENRIDGE  J.  concurred. 

Judgment  reversed. 


1813. 


HAAK 

v. 

BREIDEK- 
BACH 
et  al. 


16  CASES  IN  THE  SUPREME  COURT 

HECKERT  and  another,  administrators  of  Heckert, 


6b    16 
10sr426 


4  Q  4  O  AJ.i-.V^JVijJ.VJL      C4A1V*    UltWltlVrA  9     W\J.I*B,»«**UV»  m+mrm  **    -m  •-  -7          « 

I^^T fl^^  HAINE.  g 

00 

IN  ERROR. 


If  the  question  ririjjjs  was  a  writ  of  error  to  the  Common  Pleas  of  Dau- 

l)e  whether  a  re-  ..          _ 

ceipt  to  which  •*-  phin  county,  where  three  bills  of  exceptions  were  ten- 
SnTJitneltwasdered  by  the  counsel  of  the  plaintiffs  in  error,  who  were  de- 
given,  the  witness  fendants  below,  to  the  opinion  of  the  Court,  in  admitting 

must  be  called  :  .         ,  ° 

but  the  fact  of  the  and  overruling  testimony.  The  whole  case  appears  m  the 
%£££*  oP^ioa  of  the  Chief  Justice. 

proved  by  any 

w'«ess'  r  .v.  ,1        Elder  and  Hopkins  for  the  plaintiffs  in  error. 

One  ot  the  de-  r 

fendants,  an  ad- 

ministrator, hav-      Montgomery  and  Duncan,  contra. 

ing  released  all 

his  interest  in  the  .  _, 

intestate's  estate,     TiLOHMAN  C.  J.  This  action  was  brought  by  George 
the  plaintiff  below  against  John  Heckert  the  original 


all  the  costs  of  the  defendant  below,  who  had  been  his  guardian,  for  money  re- 
should  be  admit-  ceived  by  the  defendant  for  the  use  of  the  plaintiff  during 
as^Ttn°«?ss!Cd  his  minority.  The  action  was  commenced  in  1787,  Heckert 
Qu<ere,  whether  died  in  1799,  and  on  his  death  his  administrators  became 

theo/ertopay  .  7  r  •  , 

is  sufficient,  and  parties  to  the  suit.  Three  bills  or  exceptions  were  taken  in 


the  course  of  the  trial. 
actual  payment,       The  plaintiff  offered  to  prove  by  the  oath  of  John  Haine* 

both  of  all  costs  »  .  l  J  ' 

accrued  at  the  that  the  said  name  had  paid  to  j.  Heckert  as  guardian  ot 
^e0falfSent'the  plaintiff  the  sum  of  150/.  specie  in  the  year  1773,  in  dis- 
may afterwards  charge  of  a  bond  in  which  the  said  John  Haine  and  others 

"LCi*rUtv 

if  there  be  an  were  bound  to  the  said  J.  Heckert  as  guardian  of  the  plain- 
tiff-  The  evidence  was  objected  to  by  the  defendant,  because 


ministra-vit,  an    there  was   a  receipt  indorsed  on  the  bond   to  which  there 

administrator  can-  ..... 

not  be  made  a  wit-  was  a  subscribing  witness,  who  alone,  as  the  defendant  con- 
h!sS!nterest,eandBten^ed»  was  competent  to  prove  the  payment.  The  bond  had 
paying  costs;  be-  been  delivered  to  the  obligor  and  cancelled,  and  the  Court 

cause  TioTi  coiistat  ,  ,  .  «    ev 

that  that  is»ue  admitted  the  evidence  of  the  said  John  Hatne  to  prove  the 
rRlVsfhhn,fanddPayment  of  the  money,  and  the  cancelling  of  the  bond.  If 

he  eventually  made  personally  responsible  for  the  debt. 

The  account  kept  by  the  intestate  as  guardian  of  the  plaintiff,  and  containing  receipts  and  pay- 
ments of  continental  money,  but  not  rendered  by  him  on  oath,  according  to  the  act  of  1781,  is  not 
evidence  :  neither  is  the  account  of  the  same  receipts  and  payments  evidence,  if  rendered  by  his  ad- 
ministrators upon  oath  as  to  their  belief,  accompanied  by  un  offer  on  their  part,  to  answer  on  oath 
any  questions  touching  the  amount  :  nor  are  they  both  together  evidence. 


OF  PENNSYLVANIA 


it  had  been  a  question  whether  a  receipt  had  been  given  by 
John  Heckert,  the  subscribing  witness  ought  to  have  been" 
produced,  but  the  plaintiff's  case  did  not  require  that  he 
should  prove  the  written  receipt.  It  was  enough  if  he  prov- 
ed a  receipt  in  fact,  and  of  that  the  oath  of  the  person  who 
paid  the  money  was  good  evidence.  There  was  no  occasion 
to  produce  the  bond  which  had  been  cancelled  ;  and  the  pro- 
duction of  it  could  not  place  the  plaintiff  in  a  worse  situa- 
tion in  point  of  evidence,  than  if  it  had  not  been  produced. 
I  am  of  opinion,  therefore,  that  the  evidence  was  properly 
admitted. 

2.  The  counsel  for  the  defendants  offered  Peter  Heckert, 
one  of  the  defendants,  as  a  witness,  he  having  released  all  his 
interest  in  the  estate  of  his  father  John  Heckert,  deceased, 
and  having  offered  to  pay  into  Court  all  the  costs  of  the  suit 
in  case  he  should  be  admitted  as  a  witness.  But  the  Court 
rejected  him.  I  am  not  quite  satisfied  about  this  offer  to  pay 
the  costs.     To  make  him  disinterested  so  far  as  respects 
costs,  there  should  be  a  payment  not  only  of  all  costs  accru- 
ed at  the  time  of  payment,  but  also  of  all  that  might  after- 
wards accrue  in  the  cause  ;   and  it  is  not  clearly  expressed 
whether  the  offer  extended  so  far.  It  is  urged  that  the  offer 
to  pay  was  sufficient,  because  there  could  be  no  occasion  to 
pay  until  it  was  known  whether  he  would  be  received  as  a 
witness.  The  usual  practice  is  to  make  a  release  of  interest 
in  cases  where  a  release  is  necessary,  before  the  Court  de- 
cide on  the  competency  of  the  witness.    But  I  do  not  think 
it  necessary  to  determine,  whether  the  offer  to  pay  costs 
was  sufficient,  because  on  another  ground  I  think  the  witness 
was  inadmissible.  He  was  one  of  the  administrators  of  his 
father,  and  a  defendant  in  the  action  ;  and  as  such  the  plain- 
tiff had  a  right  to  judgment  against  him,  in  case  he  obtain- 
ed a  verdict.  One  of  the  issues  joined  was  on  the  plea  of 
plene  administravit,  and  at  the  time  the  witness  was  offered, 
it  was  uncertain  how  the  jury  might  find.  If  the  verdict  had 
been  against  the  defendants,  on  that  issue  he  might  eventu- 
ally have  been  rendered  personally  responsible,  not  only  for 
the  costs  but  the  whole  damages  ;  for  it  might  be  that  the  as- 
sets of  the  intestate  had  not  been  administered  according  to 
law.   In  this  state  of  uncertainty  it  could  not  clearly  appear 
that  the  witness  was  disinterested,  even  if  he  had  made  an 

VOL.  VI.  C 


1813. 


HECKEKT 
v. 

H.USF. 


18 


CASES  IN  THE  SUPREME  COURT 


1813. 


HECKERT 

v. 
HAINE. 


absolute  payment  of  all  the  costs.  I  am  therefore  of  opinion 
"that  the  Court  were  right  in  rejecting  him. 

3.  The  defendants  then  offered  in  evidence,  a  book  which 
had  been  kept  by  John  Heckert  in  his  life  time,  containing 
an  account  of  his  receipts  and  disbursements  as  guardian  of 
the  plaintiff.  This  being  rejected  by  the  Court,  the  defen- 
dants offered  in  evidence  an  account  rendered  by  themselves 
on  oath,  of  the  receipts  and  disbursements,  &c.  of  their  intes- 
tate as  guardian  of  the  plaintiff.  This  account  was  drawn  up 
about  the  time  of  the  trial  or  shortly  before,  and  the  oath 
was  that  "  to  the  best  of  their  knowledge  and  belief,  it  was 
a  true  account,  &c."  They  offered  also  to  answer  on  oath 
any  question  touching  the  account,  which  the  plaintiff  might 
think  fit  to  ask  them;  but  this  evidence  was  also  rejected  by 
the  Court.  Last  of  all,  the  defendants  offered  again  the  book 
of  the  intestate  (which  had  been  offered  before,)  together 
with  their  own  account  which  had  been  offered  before,  sup- 
posingthatby  being  connected  they  might  mutually  support 
each  other.  They  were  again  rejected  by  the  Court. 

The  three  last  pieces  of  evidence  rest  upon  the  same  foun- 
dation, and  will  be  best  considered  together.  At  common  law 
there  could  be  no  pretence  for  offering  the  account  kept  by 
the  intestate  without  oath,  or  the  account  of  the  defendants 
themselves  on  their  own  oath,  not  exhibited  to  the  Orphan's 
Court  and  settled  there,  as  it  ought  to  have  been.  But  the 
admissibility  of  this  evidence  depends  on  an  act  of  assembly 
passed  21st  of  June  1781.  The  paper  money  which  had 
been  made  a  legal  tender  for  debts,  had  at  this  time  sunk 
so  low  in  value  that  it  was  found  necessary  to  repeal  the 
acts  by  which  it  had  been  made  a  tender.  They  were  ac- 
cordingly repealed  by  the  second  section  of  this  act.  But  the 
unqualified  repeal  of  the  tender  laws  might  have  thrown 
great  hardships  on  persons  who  had  contracted  debts  paya- 
ble in  the  common  currency  of  the  country,  and  on  all  who 
as  agents,  attornies,  executors,  administrators,  or  guardians, 
had  been  obliged  to  receive  the  circulating  paper  in  trust  for 
their  principals,  &c.  To  protect  such  persons  it  was  enacted 
by  the  twelfth  section  of  the  same  act,  that  were  any  sheriff, 
agent,  factor,  guardian,  trustee,  &c.  have  in  right  of  their 
offices,  trusts  or  appointments,  received  any  sum  or  sums  of 
money  for  the  use  of  his  or  their  principals,  &c.  and  have 


OF  PENNSYLVANIA. 


19 


applied  the  same  to  their  own  private  use,  in  such  case  he 
pr  they  shall  be  accountable  to  his  or  their  principals,  &c. 
for  so  much  gold  and  silver  money,  as  the  said  bills  of 
credit  or  other  money  so  by  them  received,  were  worth  at 
the  time  of  such  application,  according  to  the  rate  of  depre- 
ciation established  by  an  act  passed  3d  April  1781  ;  and 
where  any  such  sheriffs,  agents,  guardians,  5cc.  having  re- 
ceived any  sum  or  sums  of  money  as  aforesaid,  shall  render 
an  account  on  oath,  of  the  manner  of  his  disposing  of  the 
same  and  of  the  profit  or  loss  arising  therefrom,  and  the 
principal  or  other  person  interested  as  aforesaid,  shall  not 
be  able  to  disprove  the  same,  in  case  of  loss,  then  and  in  such 
case  such  profit  or  loss  shall  go  to  the  benefit  or  prejudice 
of  the  principals,  &c.  allowing  to  such  sheriff,  agent,  &c.  a 
reasonable  compensation  for  management  of  the  business ; 
but  if  the  said  sheriff,  agent,  &c.  shall  decline  to  make  such 
oath  and  render  such  account,  it  shall  be  presumed  that  he 
applied  the  said  monies  to  his  own  use,  and  he  shall  be  ac- 
countable therefor  in  the  manner  before  mentioned. 

The  defendants  do  not  come  within  the  provisions  of  this 
act,  which  requires  an  account  on  oath  of  the  guardian  him- 
self. There  was  good  reason  for  this,  because  none  but  the 
guardian  can  be  supposed  to  have  a  personal  knowledge  of 
the  transactions  touching  his  ward's  estate.  But  it  is  said 
that  by  this  construction  many  guardians  may  be  injured, 
who  had  received  paper  money  and  died  before  the  making 
cf  the  act.  It  is  not  to  be  presumed  that  many  accounts  of 
such  ancient  date  remain  at  this  day  unsettled,  so  that  very 
little  injury  could  arise  from  the  construction  which  has 
been  mentioned.  There  is  no  occasion  however  to  decide 
upon  cases  not  before  us.  What  equitable  extension  of  the 
liberal  words  of  the  act,  the  Court  might  think  itself  justi- 
fied in  giving  in  case  of  extreme  hardship,  I  will  not  say. 
The  original  defendant  in  this  action  had  twelve  years  after 
the  commencement  of  it,  to  render  his  account  on  oath ; 
having  omitted  it  for  so  long  a  time,  it  may  be  fairly  said 
that  according  to  the  words  and  spirit  of  the  act,  he  has 
declined  to  make  his  oath.  Such  gross  negligence,  if  negli- 
gence it  be,  deserves  no  countenance.  But  it  may  be  sus- 
pected that  the  guardian  did  not  choose  to  make  an  oath  on 
the  occasion,  and  intended  to  rest  his  defence  on  other  evi- 


1813. 


HECKERT 

v. 
HAINE. 


20 


CASES  IN  THE  SUPREME  COURT 


1813. 


HtfCKERT 
V. 

HAINE. 


dence,  or  on  the  defects  of  the  evidence  which  the  plaintiff 
"might  be  able  to  produce.  Be  that  as  it  may,  the  defendants 
have  not  offered  what  the  law  required.  They  have  offered 
only  their  belief  on  oath,  of  transactions  to  which  they  were 
not  privy,  and  an  account  without  oath  in  the  hand  writing 
of  their  intestate,  who  transacted  the  business,  who  had 
ample  time  to  verify  it  by  oath,  and  who  omitted  it.  I  am 
of  opinion  therefore  that  the  evidence  was  very  properly 
rejected  by  the  Court  of  Common  Pleas,  and  that  the  judg- 
ment should  be  affirmed. 

BRACKENRIDGE J.  The  plaintiff,  alleging  that  the  intestate 
whom  the  defendant  represented,  had  in  his  capacity   of 
guardian,  received  money  for  the  use  of  him  the  plaintiff 
and  those  whom  he  represented,  offered  the  evidence  of  a 
third  person  who  had  paid  the  money,  together  with  a  paper 
purporting  to  be  a  bond  cancelled,  on  which  it  had  been 
paid,  and  a  receipt  thereon  endorsed  with  a  subscribing  wit- 
ness to  the  receipt.  Had  the  receipt  been  offered  singly,  with 
an  offer  to  prove  the  hand  writing  of  the  intestate  giving  the 
receipt,  would  it  come  within  the  rule  that  the  subscribing 
witness  must  be  first  called  ?  The  third  party  producing  the 
receipt  against  the  intestate  might  be  held  to  this  strictness, 
for  he  had  called  him  to  subscribe ;  but  to  the  plaintiff  he 
could  not  be  supposed  to  be  known.  To  the  plaintiff  produc- 
ing this  receipt,  it  might  be  said  there  is  better  evidence, 
that  of  the  party  to  whom  the  receipt  purports  to  be  given; 
produce  him  and  let  us  hear  him  speak  ;  that  would  be  at 
least  of  equal  if  not  superior  grade  with  the  receipt  in  his 
possession,  and  more   satisfactory,  for  he  could  tell  us  how 
and  on  what  account  he  paid  it.    But  the  person  paying  the 
money  is  produced,  and  the  how  and  on  what  account  he 
paid  it,  is  shown  by  the  cancelled  paper  which  he  holds  in 
his  hand,  and  as  a  circumstance  of  further  evidence  in  corro- 
boration  of  his  account,  a  receipt  endorsed  upon  it  is  shown. 
The  plaintiff  would  seem  to  have  begun  right  and  to  have 
given  the  best  evidence  in  establishing  the  fact.     He  is  not 
bound  to  call  the  subscribing  witness  to  the  receipt,  nor  to 
shew  the  receipt  itself.  The  receipt  was  a  voucher  for  the  par- 
ty paying  the  money;  but  the  plaintiff  has  nothing  to  do  with 
it,  provided  he  can  prove  the  paying,  independent  of  it.  The 


OF  PENNSYLVANIA. 

receipt  is  a  matter  collateral  to  his  case  and  not  directly  in 
If  evidence  had  been  given  to  affect  the  credit  of  the' 


21 


issue. 


witness  testifying  that  he  had  paid  the  money,  and  shewing 
the  bond  and  receipt,  time  might  be  given  to  the  defendant 
representing  the  intestate  to  look  up  the  subscribing  witness  ; 
but  the  plaintiff  could  not  be  called  upon  to  produce  him, 
under  the  rule  of  superior  evidence  in  the  nature  of  the 
case  and  in  his  power  to  produce.  He  could  not  legally  be 
supposed  to  be  in  his  keeping,  as  a  witness  called  by  a 
party  to  subscribe  a  writing  is  supposed  to  be.  But  cases 
are  produced  from  the  English  books,  which  would  seem  to 
shake  the  solidity  of  this  doctrine,  and  a  determination  of 
our  own,  said  to  be  in  a  Circuit  Court,  is  also  alluded  to. 
But  the  necessity  of  producing  a  subscribing  witness  to  the 
writing,  only  on  the  plea  of  non  est  factum  to  a  bond  or 
non  assumpsit  to  a  note,  has  always  appeared  to  me  to  be 
carrying  the  rule  far  enough.  In  the  case  of  a  third  person, 
even  where  it  is  the  foundation  of  a  suit  and  comes  in  col- 
laterally, I  do  not  see  the  reason.  But  that  is  all  the  length 
to  which  the  British  cases  would  seem  to  have  carried  it. 
It  would  seem  to  me  that  the  present  would  be  a  case -dis- 
tinguished from  these  cases,  and  would  be  carrying  this 
technical  rule  farther  than  has  been  done.  It  has  always 
been  my  way  of  thinking  to  restrain  rather  than  to  extend 
the  rule.  I  should  think  under  the  circumstances  of  this 
case  the  evidence  was  admissible.  This  was  my  way  of 
thinking  on  a  former  trial  of  this  cause,  and  the  judgment 
of  the  president  to  whom  this  writ  of  error  is  directed,  is 
in  support  of  my  opinion.  I  will  not  undertake  to  reverse  his 
decision,  and  depart  from  my  own  former  opinion  at  the 
same  time.  I  would  then  restrain  the  rule  to  a  case  where 
the  execution  of  a  writing  is  directly  in  issue,  unless  notice 
shall  have  been  given  that  it  was  material  to  have  this  proof; 
as  where  A  agrees  to  pay  to  B  a  bond  or  note  from  C  to  B, 
it  would  be  going  a  great  length  even  on  notice  given,  to  say 
to  Z?,  you  must  produce  the  subscribing  witness  of  £"s  bond 
or  note  to  you,  for  in  fact  C  never  gave  you  a  bond  or 
executed  this  writing.  It  is  not  clear  to  me  that  such  evi- 
dence could  be  at  all  admissible  j  but  certainly  not  unless 
such  defence  was  expressly  set  up  and  notice  of  it  given. 
Coming  in  collaterally  it  would  be  taking  a  party  by  sur- 


1813. 


HECKERT 

v. 
HAINE. 


22 


CASES  IN  THE  SUPREME  COURT 


1813. 


HECKEUT 

v. 
HAINE. 


prise,  to  render  it  necessary  to  produce  the  subscribing  wit- 
ness. It  is  a  matter  of  inconvenience  in  all  cases  to  produce 
the  subscribing  witness,  where  the  hand  of  the  party  can  be 
proved ;  and  I  would  not  carry  the  rule  beyond  the  case 
where  the  writing  is  contested,  and  notice  of  this  given  by 
the  plea,  or  special  notice  where  the  plea  does  not  give  it. 
But  here  the  party  paying  the  money  is  better  evidence 
than  the  receipt  or  the  subscribing  witness  to  it. 

With  regard  to  the  question  under  the  second  exception 
the  competency  of  a  party  to  the  action,  having  no  other  in- 
terest but  as  to  the  costs  in  the  event  of  the  suit,  an  offer  to 
pay  the  costs  is  not  sufficient.  A  sum  sufficient  to  cover  the 
costs  must  be  paid,  that  he  may  cease  to  have  an  interest  in 
the  event  of  the  suit,  let  the  verdict  be  which  way  it  may.  The 
party  therefore  nominal  in  the  first  instance,  or  made  nomi- 
nal by  a  release  of  interest,  must  deposit  sufficient  to  cover 
the  whole  costs,  so  that  at  all  events  they  may  be  paid  in 
order  to  render  him  indifferent.  It  is  the  party  producing 
him  in  order  to  have  the  benefit  of  his  testimony  that  must 
be  supposed  to  pay;  and  this  is  no  hardship,  as  he  submits 
to  a  certain  loss  for  a  certain  advantage,  in  his  estimation 
at  the  time  greater.  It  can  therefore  only  be  under  the  act 
of  assembly  in  the  special  case,  that  the  witness  in  this  case 
was  admissible,  if  admissible.  This  act  of  assembly  was 
provided  in  consequence  of  a  peculiar  circumstance  in  the 
depreciation  of  money,  and  this  being  made  a  legal  tender 
in  the  payment  of  debts,  so  that  trustees  in  any  capacity 
might  be  obliged  to  receive  depreciated  currency  offered  in 
payment  of  what  was  due  to  those  whom  they  represented, 
or  for  whose  use  they  were  rendered  compellable  to  receive 
it,  the  oath  of  these  as  to  the  kind  of  money  paid  and  the 
time  of  payment,  and  all  matters  of  this  nature,  was  made 
evidence.  For  the  time ,  where  the  currency  depreciated  from 
time  to  time,  was  material ;  and  the  emission  of  paper  money 
might  be  material  j  for  if  I  recollect  right,  it  was  not  every 
species  of  bills,  state  or  continental,  as  it  was  called,  that  was 
made  a  legal  tender.  It  might  also  be  material  to  show  the 
necessity  of  receiving  this  money,  it  being  tendered  ;  and  also 
the  not  being  able  to  exchange  it,  or  to  put  it  out  again  for 
the  benefit  of  those  for  whose  use  it  was  paid,  might  be  ma« 
terial.  It  was  in  consideration  of  these  things,  reconciling 


OF  PENNSYLVANIA. 


23 


state  necessity  with  justice  to  trustees  and  agents,  that  this 
act  passed  enabling  them  to  account,  and  giving  them  the 
privilege  of  an  oath  where  they  could  not  otherwise  esta- 
blish the  truth  of  the  fact,  or  disprove  the  allegation  that 
they  had  received  in  gold  or  silver,  and  were  accountable 
for  that  sum  in  specie.  This  was  a  privilege  secured  for  the 
estate  of  the  trustees  as  it  would  seem  to  me,  so  that  in  case 
of  their  decease,  those  interested  in  the  settlement  of  the 
estate  of  the  trustees  might  be  heard,  not  only  executors  and 
administrators,  but  heirs  or  next  of  kin,  or  any  to  whom 
the  estate  of  the  trustees  might  come,  at  least  so  far  as 
respected  those  immediately  interested.  The  act  has  the  ex- 
press words,  "principal  or  other  person  interested  as  afore- 
"  said."  The  aforesaid  may  restrain  to  the  trustees  or  agents 
mentioned,  but  persons  interested  in  consequence  of  a  dis- 
charge of  the  trust,  would  seem  to  come  within  the  equity 
of  the  provision.  There  is  the  same  equity,  and  it  is  within 
the  same  reason,  that  those  interested  in  the  estate,  especi- 
ally if  these  have  become  at  the  same  time  the  legal  and 
official  representatives  of  the  deceased  principals,  should 
have  the  privilege  of  their  oaths,  to  establish  facts  relative 
to  the  discharge  of  the  trust,  notwithstanding  the  interest  to 
which  they  had  succeeded  in  the  estate  of  the  principal.  I 
was  inclined  to  this  way  of  thinking  when  the  cause  was 
before  me  on  trial  in  the  Circuit  Court,  and  I  incline  to 
that  way  of  thinking  still. 

As  to  the  exceptions  under  the  third  head,  I  must  say  the 
same,  as  to  the  original  book  of  receipts  kept  by  the  guar- 
dian. It  was  admitted  by  me  and  I  still  incline  to  think  that 
it  ought  to  have  been  admitted  on  this  trial  before  the  pre- 
sident of  the  District  Court.  With  respect  to  the  account 
of  the  administrators  of  the  guardianship  of  the  intestate, 
accompanied  with  the  offer  of  the  administrators  to  be  cross 
examined  respecting  the  said  account,  and  all  things  touch- 
ing the  same  on  oath,  the  onhr  objection  I  can  see  is  the 
not  being  offered  to  the  Orphan's  Court  in  the  first  instance ; 
for  if  I  am  correct  in  allowing  those  interested  in  the  estate 
to  be  admitted  to  an  oath  on  the  settlement  of  the  account 
of  the  discharge  of  bis  trust,  this  would  remain  the  only  ob- 
jection. This  was  admitted  by  me  on  the  trial  in  the  Circuit 
Court,  though  I  thought  it  a  doubtful  point,  if  I  remember 


1813. 


HECKEHT 

V 
HAIJJE. 


24 


CASES  IN  THE  SUPREME  COURT 


1813. 


HECKERT 

v. 
HAINE. 


right,  whether  the  Orphan's  Court  ought  not  in  the  first 
instance  to  have  passed  upon  it.  But  I  incline  to  think  that 
on  an  adversary  suit  at  common  law,  such  an  account  might 
be  addmitted,  though  it  had  not  come  through  the  medium 
of  the  Orphan's  Court,  or  undergone  its  examination  in  the 
first  instance  ;  but  this  I  will  leave  to  the  Chief  Justice  with- 
out expressing  a  decided  opinion  on  the  case.  The  special 
circumstances  of  the  case  had  weight  with  me  in  my  opi- 
nion on  the  trial  in  the  Circuit  Court,  but  the  facts  respecting 
this  do  not  appear  and  cannot  be  taken  into  view  on  the 
writ  of  error,  making  no  part  of  the  bill  of  exceptions.  The 
naked  question  will  be  that  which  has  been  stated,  can  the 
official  representatives  of  a  deceased  trustee,  in  settling  his 
account  with  the  Orphan's  Court  be  heard  on  oath  under 
the  act  of  assembly  ?  In  the  second  place,  for  there  are  two 
questions,  can  the  official  representatives  not  having  settled 
the  account  with  the  Orphan's  Court,  be  heard  otherwise 
than  on  an  appeal  from  the  Orphan's  Court?  This  I  will 
leave  as  I  have  said  to  the  Chief  Justice,  though  I  incline 
now  as  I  did  before,  to  think  that  they  can  be  heard. 

Judgment  affirmed. 


Lancaster, 
Saturday, 
May  29. 


ZERGER  against  SAILER, 


IN  ERROR. 


E 


66  24 
9srl65 
16srl51 
16s r 153 
16s i 154 
8  486 
60  393 


I RROR  to  the  Common  Pleas  of  Dauphin  county. 

to  charge  the  jury 

h approved *eer-y       ^n  tne  Court  below  Sailer  brought  case  against  Zerger, 
tain  facts  which    jn  which  he  declared,  that  whereas  Zerrer  on  the   1st  of 

»re  sufficient  to  ... 

make  out  his        August  1803,  in  consideration  of  414/.  sold  to  Sailer  thirty- 
claim  or  defence;    .  c  i      j  •      T\       .  i  •  i    i    •  11 
fcecause  the  Court S1X  acres  or  land  in  Daupfnn  county,  and  delivered  the  pos- 

has  no  right  to     session  thereof  to  Sailer,  who  being  so  possessed,  erected 

charge  the  jury  ' 

that  the  facts  are  and  built  a  good  two  story  house  on  the  land,  which  cost  him 

proved. 

An  award  of  a  certain  snm  to  the  defendant,  "  deducting  an  unsettled  account  of  the  plaintiff 
"  against  the  defendant,"  is  void. 

Where  several  things  are  to  be  done  by  the  plaintiff,  precedent  to  the  performance  of  the  defen- 
dant's part  of  the  agreement,  it  is  necessary  for  the  plaintiff  to  aver  performance  of  all  the  things  to 
be  done  by  him-  Hut  if  the  performance  of  a  part  is  not  averred,  and  it  appears  by  the  defendant's 
plea,  or  by  his  notice  under  the  plea,  that  the  part  in  question  was  performed,  the  declaration  is 
cured. 


OF  PENNSYLVANIA. 


25 


300/.  :  and  afterwards,  to  wit  the  1st  of  March  1805,  at,  &c. 
it  was  agreed  between  the  parties,  that  if  Sailer  would  re- 
scind the  aforesaid  contract,  and  redeliver  quiet  and  peace- 
able possession  of  the  said  36  acres  of  land,  and  the  house 
thereon  erected,  that  he  the  said  Zerger  would  well  and 
truly  pay  Sailer,  all  the  money  and  value  which  he  had  re- 
ceived on  acconnt  of  the  purchase  money  of  the  land,  and 
would  reimburse  and  pay  to  Sailer  the  full  amount  of  the 
monies  which  he  had  expended  in  erecting  and  building  the 
said  house,  as  well  as  a  reasonable  allowance  for  his  personal 
labour  upon  the  same.  That  the  said  Sailer,  reposing  confi- 
dence in  the  promise  of  the  said  Zerger,  on  the  said  1st  day 
of  March  1805,  at,  &c.  at  the  special  instance  of  the  said  Zer- 
ger, did  redeliver  quiet  and  peaceable  possession  of  the  said 
36  acres  and  the  house,  unto  the  said  Zerger,  in  pursuance  of 
the  said  agreement,  and  the  said  Zerger  did  then  and  there 
promise  Sailer,  that  he  would,  when  required,  pay  to  Sailer 
the  amount  of  the  monies  and  value  by  him  received  on  ac- 
count of  the  purchase  money  aforesaid,  and  also  that  he  would 
pay  and  satisfy  him  for  all  his  expense,  and  labour  expended 
in  erecting  and  building  the  house.  The  declaration  then 
averred  that  Sailer  paid  in  money  and  goods  to  Zerger  to 
the  amount  of  200/.  on  account  of  the  purchase  money,  and 
that  he  expended  in  erecting  the  house  300/.  and  that  Zer- 
ger though  requested,  had  refused  to  pay. 

To  this  the  defendant  pleaded  non  assumpsit  and  pay- 
ment, and  afterwards  added  arbitrament  and  award,  and 
accord  and  satisfaction  ;  and  gave  notice  to  the  plaintiff,  that 
he  should  give  in  evidence  at  the  trial,  that  in  the  year 
1803,  he  sold  by  parol  to  the  plaintiff,  36  acres  of  land  for 
III.  10*.  the  acre,  to  be  paid  in  a  particular  manner  set  out  ; 
that  the  defendant  was  to  do  certain  things  about  the  pre- 
mises for  the  plaintiff,  and  that  the  plaintiff  was  to  do  cer- 
tain other  things,  which  were  also  set  out :  that  the  plain- 
tiff never  did  those  things,  nor  any  part  of  the  consideration, 
although  the  defendant  was  always  ready,  and  did  per- 
form all  on  his  part.  That  when  the  plaintiff  found  he 
could  not  pay  for  the  said  land,  or  perform  his  said  agree- 
ment, he  made  a  new  agreement  with  the  defendant  by  parol, 
in  and  by  which  he  agreed  to  relinquish  all  claims  under 
the  aforesaid  purchase,  in  consideration  of  5  acres  of 

VOL.  VI.  D 


1813. 


ZERGER 

v. 
SAILER. 


26  CASES  IN  THE  SUPREME  COURT 

1815.        rye,  which  he  afterwards  received  and  took   away,  yielding 
VERCFI       oH  claims  against  the  defendant ;  and  the  defendant  thereupon 

•y.  gave  up  the  contract. 

SAILER.  A  variety  of  evidence  was  given  upon  both  sides,  and  the 
defendant  proved  an  award  in  a  suit  brought  by  him  against 
Sailer  for  the  same  matter,  before  a  justice  of  the  peace,  by 
which  the  referees  awarded  to  Sailer  60/.,  Zerger's  unsettled 
account  against  Sailer  to  be  deducted  out  of  it:  and  at  the 
conclusion,  his  counsel  asked  the  Court  to  charge  the  jury  ; 
1.  That  the  plaintiff  had  not  proved  the  cause  of  action  de- 
clared for.  2.  That  there  was  a  variance  between  the  declara- 
tion and  the  evidence.  3.  That  the  defendant  had  supported  his 
plea  of  accord  and  satisfaction,  and  established  his  defence. 
The  presiding  judge  charged  the  jury,  "  that  the  plaintiff 
"  was  bound  to  prove  the  contract  laid  in  the  declaration : 
"  that  the  allegations  and  proofs  must  agree  ;  and  if  the  con- 
"  tract  declared  on,  or  the  consideration  stated,  was  at  vari- 
"  ance  with  the  evidence,  the  plaintiff  could  not  recover  j  but 
u  that  variance  or  no  variance  was  a  matter  of  fact  on  which 
"  the  jury  were  to  decide."  He  also  charged  them  that  the 
award  was  void,  not  merely  because  it  was  made  in  a  suit 
before  a  justice  for  a  sum  beyond  his  jurisdiction,  but  be- 
cause it  was  neither  final  nor  certain. 

The  exceptions  taken  by  the  counsel  of  the  plaintiff  in 
error,  were  seven.  The  first  three,  because  the  Court  omit- 
ted to  charge  the  jury  in  the  manner  above  stated  :  fourth, 
for  charging  that  the  award  was  void  :  fifth,  not  material : 
sixth,  because  the  consideration  for  the  defendant's  promise, 
was  in  part  the  rescinding  the  contract,  and  there  was  no 
averment  in  the  declaration,  that  the  plaintiff  had  rescinded 
it:  seventh,  because  the  consideration  being  founded  on  the 
rescinding  of  the  contract,  and  delivering  possession  of  the 
land  and  house,  the  promise  is  made  to  rest  upon  and  arise 
out  of  the  delivery  of  possession  merely. 

Elder  and  Hopkins  for  plaintiff  in  error. 
Goodzvin  and  Duncan  contra. 

TIL  GUM  AN  C.  J.  stated  the  first  three  exceptions,  together 
with  the  charge  of  the  judge,  and  then  proceeded  as  follows : 


OE  PENNSYLVANIA. 


I  cannot  perceive  error  in  this  charge.  The  attention  of 
the  judge  was  not  drawn  to  any  particular  point,  but  he  was 
called  on  to  declare  that  upon  the  whole  evidence,  the  plain- 
tiff had  failed  in  proving  his  cause  of  action.  The  rule  of 
law  is,  that  "  to  questions  of  fact  the  judges  are  not  to  an- 
"  swer."  How  could  the  judge  answer  the  question  proposed, 
without  deciding  the  fact  ?  If  the  Court  have  a  right  to  di- 
rect the  jury,  that  certain  facts  are  proved  or  not  proved, 
then  the  jury  are  bound  to  obey  the  direction.  It  follows 
that  the  trial  by  jury  is  at  an  end.  The  Court  may  express 
their  opinion  of  the  evidence,  and  if  they  think  the  jury  are 
clearly  mistaken  in  deciding  on  facts,  they  may  order  a  new 
trial  j  but  when  the  new  trial  is  had,  the  decision  of  the  facts 
reverts  again  to  the  jury.  If  the  opinion  of  the  Court  is  de- 
sired on  matters  of  law,  they  may  be  required  to  give  in 
charge  to  the  jury  hypothetically,  that  if  the  jury  shall  be 
of  opinion  that  certain  facts  are  proved  or  not  proved,  the 
result  of  law  will  be  in  a  certain  way  ;  or  if  the  defen- 
dant's counsel  think  that  the  facts  proved  do  not  support 
the  declaration,  they  may  demur  to  the  evidence.  I  know 
no  other  way  of  withdrawing  the  decision  from  the  jury 
and  giving  it  to  the  Court,  unless  the  parties  will  agree  on  a 
state  of  facts,  to  be  submitted  to  the  Court's  decision.  The 
same  remarks  will  apply  to  the  evidence  of  the  defendant* 
If  the  Court  are  required  to  declare  to  the  jury  as  matter 
of  law,  that  the  defendant  has  proved  certain  facts  which 
are  sufficient  to  support  his  defence,  they  are  not  bound  to 
do  it.  But  they  may  and  ought  to  declare,  that  in  case  the 
jury  should  be  of  opinion  that  the  facts  are  proved,  in  that 
case  the  defence  is  good  in  law. 

The  fourth  error  assigned  is  on  the  opinion  of  the  Court 
with  respect  to  an  award.  Zerger  had  sued  Sailer  before  a 
justice  of  the  peace  for  a  debt  under  100  dollars;  the  suit 
was  submitted  to  arbitrators,  who  made  an  award  in  favour 
of  the  defendant  for  GO/,  to  be  paid  by  the  plaintiff,  deduct- 
ing an  unsettled  account  of  the  plaintiffs  against  the  defend- 
ant. Many  faults  have  been  found  with  this  award.  It  was 
decided  by  the  Court  to  be  void,  and  the  decision  was 
clearly  right  j  for  without  entering  into  all  its  faults,  it  is 
neither  certain,  final,  nor  conclusive.  How  much  was  to  be 
paid  by  the  plaintiff  to  the  defendant  ?  No  man  can  say.  Be- 


1813. 


ZERGER 

v. 
SAILER. 


28 


1813. 


ZERGER 

v. 
SAILER. 


CASES  IN  THE  SUPREME  COURT 

fore  that  question  is  answered,  you  must  settle  the  plain- 
"  tiff's  account,  and  the  settlement  of  that  account  may  in- 
volve the  parties  in  another  suit. 

There  was  one  more  error  assigned  in  the  charge,  which 
it  would  have  been  necessary  to  consider,  in  case  our  opi- 
nion had  been  that  the  award  was  good ;  but  the  award  being 
void,  the  ground  of  this  error  is  removed. 

The  declaration  remains  to  be  considered,  which  is  said 
by  the  counsel  for  the  defendant,  to  contain  no  cause  of 
action.  The  objection  is,  that  although  it  is  set  forth,  that 
possession  of  the  house  and  land  was  delivered,  yet  it  is  not 
said,  that  the  original  contract  was  rescinded,  which  is  a 
material  part  of  the  consideration  of  the  promise  on  which 
this  suit  is  brought.  The  general  principle  is,  that  where 
several  things  are  to  be  done  by  the  plaintiff,  precedent  to 
the  performance  of  the  defendant's  part  of  the  agreement, 
it  is  necessary  for  the  plaintiff  to  aver  performance  of  all 
the  things  to  be  done  by  him.  It  is  argued  for  the  plaintiff, 
that  the  delivery  of  the  possession  implies  the  rescinding  of 
the  contract.  Without  deciding  that,  my  opinion  will  be 
founded  on  another  circumstance.  The  defendant  pleads 
payment  with  leave  to  give  the  special  matter  in  evidence, 
after  which,  according  to  the  rule  of  Court,  he  gave  no- 
tice of  the  matter  intended  to  be  given  in  evidence.  This  no- 
tice is  to  be  considered  as  part  of  the  plea.  It  appears  by  the 
notice,  that  the  defendant  intended  to  prove  among  other 
things,  that  the  original  contract  was  rescinded,  so  that  the 
omission  in  the  declaration  is  supplied  in  the  defendant's 
plea.  It  appears  on  the  record,  that  the  contract  was  rescind- 
ed ;  and,  whether  it  is  made  to  appear  by  the  averment  of 
the  plaintiff,  or  the  plea  of  the  defendant,  is  quite  immaterial. 

I  am  of  opinion  on  the  whole,  that  none  of  the  errors  as- 
signed have  b.een  supported,  and  therefore  the  judgment 
should  be  affirmed. 

BRACKENRIDGE  J.  On  demurrer  to  the  action  on  the 
ground  of  an  unlawful  cause  of  action,  or  on  demurrer  to  the 
declaration  no  cause  of  action  being  set  forth,  or  to  the  evi- 
dence none  appearing  to  support  the  declaration,  or  to  a 
variance  of  the  evidence  from  the  declaration,  which  is  the 
same  thing,  for  in  that  case  it  was  as  no  evidence,  a  bill  of 


OF  PENNSYLVANIA. 


29 


exceptions  would  lie  on  the  part  of  the  plaintiff,  the  judg- 
ment being  against  him.  But  if  no  demurrer  takes  place  on" 
the  part  of  the  defendant,  and  he  waives  all  application  to 
the  Court,  in  such  cases  what  can  the  Court  do  but  leave 
it  to  the  jury  under  their  direction?  They  may,  it  is  true, 
interpose  at  once  and  direct  a  nonsuit ;  but  they  are  not 
bound  to  do  it,  unless  at  the  instance  of  the  defendant,  the 
plaintiff  being  willing  to  run  the  risk  of  a  verdict  against 
him.  I  except  those  cases  where  there  is  a  want  of  juris- 
diction, and  an  unlawful  cause  of  action ;  for  in  these  cases, 
the  Court  are  bound  at  once  to  interfere  and  put  an  end  to 
the  proceeding.  This,  where  the  want  of  jurisdiction  is  evi- 
dent, and  the  nature  of  the  action  is  against  public  policy  or 
good  morals.  But  on  the  ground  of  there  being  no  cause  of 
action  set  forth  in  the  declaration,  and  no  demurrer  to  the 
declaration  by  the  defendant,  or  on  the  ground  of  the  pro- 
bata  not  supporting  the  allegata  of  the  declaration,  and  no 
demurrer  to  the  evidence  on  this  behalf,  the  question  is  not 
put  immediately  to  the  Court,  so  that  they  are  bound  to  an- 
swer it.  The  defendant  letting  it  go  to  the  jury,  if  there 
be  any  fact  upon  which  the  law  arises,  what  can  the  Court 
do  but  leave  that  fact  to  them.  Whether  the  probata  varies 
from  the  allegata  becomes  then  a  matter  of  fact,  upon  which 
they  must  decide.  I  have  never  heard  of  a  bill  of  excep- 
tions to  the  opinion  of  the  Court  on  this  case,  because  they 
did  not  undertake  to  say  that  there  was  no  evidence,  or  that 
there  was  a  variation.  But  all  these  things  may  be  taken  ad- 
vantage of  in  another  stage  of  the  cause,  and  the  question 
put  to  the  Court  on  a  motion  in  arrest  of  judgment.  A  bill 
of  exceptions  would  lie  to  the  judgment  of  the  Court  in 
this  case,  either  for  the  plaintiff  or  by  the  defendant,  as  the 
judgment  might  be.  Where  the  matter  of  law  is  involved  in 
the  issue,  and  cannot  be  separated  from  it,  the  Court  may 
be  called  upon  in  their  direction  to  the  jury  to  state  the  law, 
and  if  not  correctly  stated,  a  bill  of  exceptions  will  lie  to 
the  opinion  of  the  Court.  But  variance  or  no  variance  is 
a  matter  that  might  be  separated  from  the  issue,  and  if 
not  done  and  put  to  the  Court,  what  can  the  Court  say  in 
their  direction  to  the  jury,  but  that  you  must  judge,  whe- 
ther there  is  evidence  or  no  evidence,  variance  or  no  va- 
riance, in  the  proof  offered  to  support  the  declaration.  It 


1813. 


ZERGER 

v. 
SAILER. 


30 


CASES  IN  THE  SUPREME  COURT 


1813. 


ZEHGKR 

•v. 
SAILER. 


would  not  be  doing  justice  to  the  judge  to  waive  all  form 
in  bringing  this  matter  forward,  and  to  treat  it  as  a  judg- 
ment on  a  motion  in  arrest  of  judgment,  where  the  point  of 
law  had  been  brought  precisely  before  him,  and  on  which 
he  had  given  judgment,  or  where  in  his  direction  to  the 
jury  he  had  been  called  upon  to  say,  whether  supposing  a 
variance  the  plaintiff  could  recover.  But  he  has  said  this, 
and  that  if  a  variance,  the  plaintiff  could  not  have  a  verdict ; 
and  variance  or  no  variance  is  a  fact  which  he  has  left  to 
them  as  a  fact  upon  which  the  law  must  arise.  I  cannot  see 
error  in  this.  But  what  variance  could  he  have  stated  as  a 
matter  of  law  between  the  evidence  and  the  declaration  ? 
The  evidence  is  abundant  that  in  consideration  of  rescinding 
a  former  contract,  a  new  contract  was  made.  This  new  con- 
tract and  a  compliance  with  it  on  the  part  of  the  plaintiff  is 
proved.  But  can  it  be  made  a  part  of  the  new  contract  that 
the  former  contract  was  rescinded?  The  word  rescind 
takes  its  rise  vi  termini,  as  it  would  appear,  from  the  syn- 
graph,  or  writing  some  word  vertically  upon  the  parchment 
or  paper  on  which  duplicates  of  the  contract  were  written, 
and  then  cutting  through  the  word,  so  that  each  had  his  half, 
which,  when  united,  would  show  the  identity  of  the  duplicate 
instrument.  From  these  brought  together  and  united,  the 
word  was  cut  away,  so  that  the  instrument  of  contract  was 
said  to  be  rescinded,  and  the  cleaving  undone.  Where  this 
form  cannot  be  observed,  what  can  be  the  evidence  of  waiv- 
ing a  former  contract,  but  a  compliance  with  the  new,  where 
that  is  the  condition  of  the  former  being  annulled  ?  But  it  is 
not  averred  in  the  declaration  that  he  did  rescind  the  former 
contract,  but  it  is  averred  that  he  complied  with  the  new ; 
what  is  the  whereas,  and  stating  the  former  contract,  but  in- 
ducement to  the  laying  the  new  ?  The  whereas  need  not  be 
proved  in  any  declaration  ;  it  is  but  matter  of  inducement. 
The  consideration  of  the  new  contract  was  the  delivering 
up  possession  of  certain  premises,  and  this  is  laid  in  the 
declaration,  and  is  proved  to  have  been  done.  If  we  could 
get  at  it  under  an  exception  to  the  charge  generally,  the  de- 
fect alleged  in  the  declaration  is  but  matter  of  form ;  and 
where  there  is  such  a  want  of  form  in  getting  at  the  excep- 
tion, it  is  not  with  a  good  grace  that  it  is  insisted  on. 
I  feel  myself  at  a  loss  how  to  get  at  it  at  all ;  and  supposing 


OF  PENNSYLVANIA. 


31 


we  could  get  at  it,  I  see  no  substantial  error  in  it.  But  it  is 
alleged  "  that  the  Court  erred  in  charging  the  jury  that  the" 
arbitrament  and  award  were  void,"  which  was  a  plea  in  this 
case.  In  that  I  am  abundantly  clear  that  they  did  not  err. 
It  was  absolutely  void  and  of  no  account,  and  for  the  rea- 
sons given  by  the  Court.  It  is  not  an  exception  that  the 
Court  left  it  to  the  jury  under  their  direction  to  say  whe- 
ther void;  because  it  could  not  otherwise  be  but  that  it  must 
be  left  to  the  jury.  It  is  not  pleaded  as  a  record,  nor  could 
it  be  so  pleaded,  so  as  to  be  brought  before  the  Court  as  an 
abstract  matter  of  law,  upon  which  the  Court  upon  in- 
spection could  decide.  Had  it  been  pleaded  as  a  record,  the 
plaintiff  might  have  demurred,  or  the  replication  nul  tiel 
record  would  defeat  it.  It  is  left  to  the  jury  as  matter  of 
fact,  and  the  Court  as  matter  of  law,  that  taking  the  fact  as 
it  appeared,  the  award  was  void,  and  there  was  no  accord 
and  satisfaction.  But  supposing  it  not  void,  which  would 
depend  upon  the  evidence  respecting  it,  I  mean  void  in  the 
submission  and  the  making,  the  Court  are  alleged  to  have 
erred  in  leaving  it  to  the  jury  to  say  whether  under  circum- 
stances it  was  not  waived  or  abandoned.  This  must  also  be 
a  matter  of  fact,  for  it  must  depend  upon  the  circumstances. 
This  became  immaterial  in  the  case  of  a  void  arbitrament. 
But  supposing  it  to  be  material,  the  Court  and  jury  would 
have  done  right  in  considering  it  as  abandoned  and  waived. 
The  whole  matter  as  brought  before  the  Court  has  now  ra- 
ther the  appearance  of  a  motion  for  a  new  trial.  But  even 
in  that  view  my  impression  from  the  testimony  is  not  favour- 
able to  the  defendant. 

He  seems  to  have  used  no  small  address  to  get  the  con- 
tract rescinded,  or  in  other  words  the  former  bargain  given 
up,  and  this  being  done,  his  object  seems  to  have  been  to 
baffle  the  plaintiff  and  avoid  a  performance  of  the  new  con- 
tract on  his  part.  But  on  the  law  grounds  on  which  the  writ 
of  error  has  been  brought  I  incline  to  affirm  the  judgment. 


1813. 


ZRHGER 
V. 

SAILER. 


Judgment  affirmed. 


CASES 


IN    THE 


SUPREME   COURT 

OF 

PENNSYLVANIA. 

Middle  District.  June  Term,  1813. 

1813. 

Swnbury,  MoULSON    Ogamst    RzES.  tf^l& 

IN  ERROR. 

RROR  ^'Northumberland,  iu  which  county  Rees  issued 


the  date  of  the        _J    a  capias  in  case,  and  referred  it   to  arbitrators,  who 

arbitration  law,  •  ;*.«•          <        i    r       ,          ,     ,  i        ,  ,    ,   ,. 

it  is  immaterial,    awarded  "  that  the  defendant  below  should  deliver  a  certain 

arbitrating  ffbJ"deed  Po11  to  R"8,  pay  all  costs  of  suit,  and  damage  six- 
cause,  and  getting  «  (een  dollars." 
judgment,  before 
the  entry  of  spe- 
cial bail,  dispenses      The  exceptions  taken  to  the  record  were,  1.  That  the  ac- 

the  defendant8' '  tion  was  arbitrated  by  the  plaintiff  below,  and  tried  by  the 

for  error38'5"  '*    ai"bitrators»  before  the  plaintiff  in  error  entered  special  bail, 

If  the  cause  of  after  being  arrested  on  the  capias*  2.  That  the  cause  of  ac- 

action  appears  in     .          ,.  ,  .... 

the  award,  nei-    tion  did  not  appear  either  in  the  writ,  or  in  any  statement  or 
ther  statement     declaration  filed.  3.  That  the  act  of  Assembly  referred  to  in 

nor  declaration  is  * 

necessary.           the  rule  of  arbitration,  was  of  the  19th  March,  1810;  where- 
as there  was  no  such  law  of  that  date. 

Maus,  for  plaintiff  in  error. 
Greenough,  contra. 

TILGHMAN  C.  J.  delivered  judgment. 

The  arbitration  may  be  entered  at  any  time  after  the  is- 
suing of  the  writ,  which  is  the  commencement  of  the  suit, 
according  to  the  opinion  of  the  Court  in  Hertzog  v.  Elltst 
3  Binn.  209.  The  plaintiff  in  this  case,  although  a  capias 


OF  PENNSYLVANIA. 


33 


V. 

REES. 


was  issued,  has  dispensed  with  special  bail,  as  he  had  a  1813. 
right  to  do ;  and  this  is  for  the  advantage  of  the  defendant.  MOULSON 
As  to  the  cause  of  action,  it  sufficiently  appears  on  the  re- 
cord, that  the  matter  in  dispute  was  a  deed,  which  was  des- 
cribed in  the  award,  and  for  the  conversion  of  which,  six- 
teen dollars  damages  are  given.  I  consider  the  action  as 
Trover,  and  the  judgment  as  relating  to  the  damages  only, 
and  not  to  the  delivery  of  the  deed.  As  for  the  mistake  in 
the  date  of  the  act,  it  is  immaterial.  It  is  a  public  act,  of 
which  the  Court  must  take  notice.  The  mentioning  of  it  by 
the  prothonotary  in  entering  the  rule  of  reference,  was  sur- 
plusage. Besides  the  title  of  the  act  is  properly  given, 
although  the  date  is  mistaken. 

Judgment  affirmed. 


MASTELLER  against  TRIMBLY. 


E 


IN  ERROR. 


RROR  to  the  Common  Pleas  of  Northumberland. 


Simbury, 

Friday, 
June  4. 


which  extends 

The  action  was  in  its  origin  trespass,  not  exceeding  fifty  the  powers  of  jus- 
dollars,  brought  before  a  justice  of  the  peace,  under  the  act  brought  for  the 
of  1st  March  1799,  3  Smith's  Laws,  354.  in  which    the  recove7  of  da' 

mages  for  any 

plaintiff  Trimbly  demanded  50  dollars,  "  damages  sustained  trespass,  -wrong-, 

.,  i         i        i    r       i        i       i          •  i         i    •      •  rr»  •  or  injury,  done 

"  by  the  defendant  s  cheating  the  plaintiffs  servant,  a  minor,  or  committed 
"  in  trading  a  horse  for  a  mare,  for  which  the  servant  had  asalnst  the  reai 

or  personal  estate 

"  no  authority  to  trade."  The  case  was  referred  to  arbitra-  of  the  plaintiff, 
tors  who  awarded  to  the  plaintiff  52  dollars  5O  cents.  The  mages  doVot  "ex- 
defendant  appealed  to  the  Common  Pleas,  where  there  was  a?erd  20  d<?llai>9» 

"  (afterwards  in- 

second  reference,  and  award  for  the  same  sum  ;  and  the  plain-  creased  to  so  dol- 
tiff  released  2  dollars  5O  cents,  the  excess  beyond  the  ma-  pl-eh 
gistrate's  jurisdiction,  by  the  act  of  13th  April  1807.  4  Smith's  wllcre  *e 

'    J  mage  arises  by  an 

Laws,  470.  actual  or  imme- 

The  only  error  relied  upon  was  the  want  of  jurisdiction  ^In^nlou'the" 

in  the  justice.  boily  of  the  pro- 

%«  perty. 

Maus  and  Duncan,  for  the  plaintiff  in  error. 


Hall,  contra. 
VOL.  VI. 


E 


34 


CASES  IN  THE  SUPREME  COURT 


1813. 


MASTELLER 

v. 
TRIMBLY. 


TILGIIMAN  C.  J.  delivered  judgment. 

We  are  of  opinion  that  the  act  of  1st  March  1799,  under 
which  this  suit  was  brought,  did  not  give  jurisdiction  to 
justices  of  the  peace,  except  in  cases  where  damage  arises 
by  an  actual  and  immediate  injury  done  to  real  or  personal 
property.  It  was  not  meant  to  include  injuries  arising  with- 
out any  act  operating  immediately  on  the  body  of  the  pro- 
perty :  such  for  instance  as  the  present  case,  whichj  was  cheat- 
ing in  a  bargain  concerning  a  horse.  If  the  words  were  taken 
in  their  greatest  possible  extent,  they  would  include  Trover 
and  Conversion,  which  was  never  supposed  to  be  within  the 
act,  and  in  which  jurisdiction  was  subsequently  given  by 
the  act  of  4th  April  1 809.  There  are  expressions  also  re- 
specting the  estimating  the  damages,  by  view  or  otherwise^ 
which  seem  to  suppose  that  it  must  be  a  damage  which 
might  be  judged  of  by  inspection.  Trespass  against  property 
in  common  parlance,  means  an  act,  by  which  immediate  in- 
jury is  done  to  the  property,  and  this  is  the  sense  in  which 
the  legislature  used  it.  The  cause  of  action  in  this  case  was 
not  of  that  nature ;  the  justice  therefore  had  no  jurisdiction, 
apd  the  judgment  must  be  reversed. 

Judgment  reversed. 


Sunbury, 


June  7 

In  an  action  of 
trespass  quare 
clausum  fregit 

fcc.  referred  to 
out'declaratTon1" 


RICHTER  against  CHAMBERLIN  and  others. 


E 


IN  ERROR. 


RROR  to  the  Common  Pleas  of  Northumberland. 


Richter  brought  an  action  of  trespass  against  the  defend- 
ants, for  breaking  his  close,  pulling  down  and  carrying  away 
or  pie*,  the  arbi-  his  fences,  and  treading  down,  spoiling  and  destroying  his 

trators  awarded  .  ,  .  "  i-         i  o 

as  follows:  "  Wegrass,  with  a  contmuanao  as  to  treading  down,  &c.  the  grass 
^te  from  1st  May  to  28th  May  1812.    On  the  same  day  on 
in  favour  of  the  which  the  suit  was  instituted,  and  before  either  plea,  decla- 

'  defendant,  and  .  n     i      i          i    •      •«•  i  i         «• 

'the division  as    ration  or  statement  hied,  the  plamtm  entered  a  rule  of  re- 
<bVthcest"-dSt0ference»  anc*  tne  arbitrators  returned  the  following  award  : 

'  blisht  d  line."  Held,  that  the  defendant  could  recover  no  land  under  the  award,  nor  were  the  boun- 
daries fixed  by  it,  tliat  not  being  a  matter  about  which  the  parties  were  at  variance  in  the  suit, 
but  merely  a  claim  of  damages.  The  award  is  good,  however,  as  a  general  finding,  that  the  plain- 
tiff had  no  cause  of  action. 


OF  PENNSYLVANIA.  35 

"  We  do  award  the  lands  in  dispute  in  favour  of  the  defend-         1813. 
"  ant,  and  the  division  as  it  now  stands  to  be  the  established     RICHTER 
« line."  v. 

The  exceptions  to  the  award,  which  were  assigned  for  error  CHAMBER- 
in  this  Court,  were,  1.  That  it  had  not  pursued  the  submis-  LIN  et  al* 
sion,  nor  taken  any  notice  of  the  damages  mentioned  in  the 
original  writ.  2.  That  it  was  obscure  and  void,  and  unap- 
propriate  to  the  cause  of  action,  so  that  no  valid  judgment 
could  be  rendered  upon  it,  or  carried  into  effect.  3.  That  it 
was  uncertain,  as  it  was  in  favour  of  the  defendant ;  and  there 
being  three  defendants,  the  arbitrators  had  not  determined 
to  which  defendant  the  plaintiff  should  deliver  the  land ;  and 
further  because  it  did  not  specify  what  land,  or  what  fence 
should  be  the  line. 

Bradford,  for  the  plaintiff  in  error. 
Maus  and  Hall,  contra. 

TILGHMAN  C.  J.  The  objections  of  the  plaintiff  in  errou 
are,  that  this  award  was  not  made  on  the  subject  submitted, 
that  it  is  uncertain  and  absurd. 

When  an  action  is  taken  from  the  Court  and  carried  be- 
fore arbitrators  under  our  act  of  assembly,  it  is  not  usual 
to  plead  and  join  issue  in  a  formal  manner.  If  this  cause 
had  been  brought  to  issue,  and  tried  by  a  jury,  the  issue 
might  have  been  joined  on  the  title  to  the  land  in  dispute ; 
and  if  that  had  been  found  for  the  defendant,  judgment 
would  have  been  given  in  his  favour.  When  the  parties 
went  before  the  arbitrators,  they  probably  contested  the  title, 
though  that  cannot  appear.  I  consider  the  award  as  amount- 
ing to  no  more  than  that  the  plaintiff  had  no  cause  of  action. 
The  defendant  cannot  recover  any  land  by  virtue  of  it,  nor 
are  the  boundaries  between  the  lands  of  plaintiff  and  de- 
fendant, to  be  considered  as  established  ;  for  that  was  not  a 
matter  submitted  to  arbitration.  The  act  of  assembly  au- 
thorizes the  arbitrators  to  decide  on  all  matters  in  variance 
in  the  action,  and  the  writ  shows  that  the  matter  in  variance 
was  a  claim  of  damages  by  the  plaintiff  for  a  trespass  on  his 
land,  and  taking  away  his  fences,  &c.  The  law  declares  that 
the  award  when  filed  in  the  office  of  the  prothonotary,  is  to 


3Q 


CASES  IN  THE  SUPREME  COURT 


1813. 


-  R 

v. 

CHAMBER- 
LIN  et  al. 


be  considered  as  a  judgment,  although  no  judgment  is  for- 
mally  entered.  This  award  would  be  sufficient  foundation 
for  the  entry  of  a  judgment,  that  the  plaintiff  take  nothing 
by  his  writ,  &c.  and  I  consider  it  as  having  that  operation, 
and  no  more.  I  am  therefore  of  opinion,  that  the  judgment 
be  affirmed. 

YEATES  J.  absent  in  consequence  of  sickness. 

BRACKENRIDGE  J.  of  the  same  opinion  with  the  Chief 
Justice. 

Judgment  affirmed. 


Svnburyt 


Case  of  Shamokin  Road. 
No  order  for     T  JPQN  a  certiorari^  to  remove  all  proceedings  in  the 
having  been  taken  *»-'    case  of  a  road  called  Shamokm  Creek  Road,  one  excep- 
Court  s°Jnt  ufe     tion  was,  that  the  breadth  of  the  road  was  not  fixed  by  the 
proceedings  down  judgment  of  the  Quarter  Sessions  :    No  order  for  opening 

to  the  Quarter     J       ° 

Sessions,  to  give  the  road  had  been  taken  out. 

them  an  oppor 

tti'.iitv  of  com-  .  •*.*.!_  i 

pieting  their  Greenough,  against  the  road. 

order  by  fixing 

the^breadthofthe      Bradford^  in  favour  of  it. 


It  appearing  that  the  Court  below  had  made  no  order  re- 
specting the  width  of  the  road,  this  Court  remanded  the 
proceedings  to  give  the  Quarter  Sessions  an  opportunity  of 
completing  their  order. 


SAN  TEE  against  KEISTER. 

™  ERROR. 


6b    36 


SS 


June  7. 

if  the  defendant 

in  ejectment  re- 


RROR  to  the  Common  Pleas  of  Luzerne  county. 

This  was  a  summons  in  ejectment  to  August  1812,  in 
plaintiff  is  reiiev-  which  the  right  of  possession  or  title  of  Keister.  the  plaintiff 

ed  from  the  duty  ,     ,  f  .       ,     .  7.       ,  r 

of  filing  a  de-       below,  was  asserted  to  "  a  tract  or  land  situate  in  the  town- 

scription  of  the 

land  in  the  prothonotary's  office,  on  or  before  the  first  day  of  the  term  to  which  the  process  is  re- 

turnable, unless  the  defendant  applies  to  the  Court  for  it. 

In  the  modern  proceeding  by  summons  in  ejectment,  arbitrators  may  award  the  plaintiff  a  part. 

An  award  in  favour  of  tlie  plaintiff  in  ejectment,  "  agreeable  to  the  decision  of  the  board  of  pro- 
perty,"  is  sufficiently  certain,  there  being  a  decision  between  the  same  parties  in  relation  to  the 
same  land. 


OF  PENNSYLVANIA. 


37 


"  ship  of  Nescopeck,  in  the  county  of  Luzerne,  containing 
"15O  acres  or  thereabouts,  bounded  on  the  west  by  the" 
"  Susquehanna  river,  on  the  south  by  lands  now  claimed  by 
u  Conrad  Lines,  on  the  east  by  land  surveyed  in  the  name  of 
"  Prisci.Ha  Lee,  and  on  the  north  by  land  surveyed  in  the 
tl  name  of  Stephen  Beech,  jr." 

In  November  1812  Santee  the  defendant  entered  a  rule  of 
arbitration,  and  in  January  the  arbitrators  returned  the 
following  award  :  "  We  do  award  in  favour  of  the  plaintiff, 
"  agreeable  to  the  decision  of  the  board  of  property,  with 
"  costs  of  suit."  On  the  26th  of  January  the  award  became 
absolute,  and  a  jwrit  of  possession  was  taken  out,  reciting 
the  award,  and  the  recovery  of  a  tract  of  63  acres  2  perches, 
by  metes  and  bounds,  and  commanding  possession  to  be 
delivered,  &c.  This  description  precisely  followed  a  deci- 
sion of  the  board  of  property  between  the  same  parties,  in 
relation  to  the  same  land. 

The  exceptions  to  the  record  were  these  : 

1.  There  was  no  description  of  the  land  filed  in  the  pro- 
thonotary's  office,  on  or  before  the  first  day  of  the  first  term, 
according  to  the  act  of  21st  March  1806. 

2.  There  is  a  variance  between  the  land  described  in  the 
writ,  and  the  award  of  the  arbitrators. 

3.  The  judgment  is  uncertain,  having  been  rendered  on 
an  award  finding  agreeably  to  a  decision  of  the  board  of 
property,  and  it  does  not  appear  by  the  record  what  that 
decision  was,  or  that  there  ever  was  any. 

4.  The  writ  does  not  pursue  the  judgment. 

5.  That  no  judgment  could  be  rendered  on  the  award,  it 
not  appearing  in  any  part  of  the  proceedings  what  land  was 
intended  to  be  awarded. 

Hall  for  the  plaintiff  in  error. 
Duncan^  contra. 

TILGHMAN  C.  J.  after  stating  the  case  and  the  several 
exceptions,  delivered  his  opinion  upon  them  as  follows : 

1.  The  act  of  assembly  requires  that  the  plaintiff  should 
file  a  description  of  the  land,  and  the  defendant  might  have 
insisted  on  it,  by  application  to  the  Court  of  Common  Pleas, 
if  he  had  thought  proper.  But  he  chose  to  enter  a  rule  of 


1813. 


SANTEE 

v. 
KEISTER. 


38 


1815. 


SANTEE 

•y. 
KEISTER. 


CASES  IN  THE  SUPREME  COURT 

reference.  The  description  was  intended  for  the  benefit  of 
the  defendant,  that  he  might  know  with  certainty  what  land 
was  in  dispute.  Every  man  may  waive  a  right  which  the 
law  gives  him.  The  defendant  therefore  might  dispense 
with  the  description  of  the  land.  Still  it  is  necessary  that  it 
should  appear  on  the  record  with  reasonable  certainty  for 
what  land  the  suit  was  brought.  This  is  a  general  principle, 
established  for  the  sake  of  public  justice,  which  the  Court 
will  not  dispense  with.  On  adverting  to  the  writ  we  find 
that  there  is  a  sufficient  description.  The  quantity  of  land  is 
mentioned.  On  one  side  it  is  bounded  by  the  river  Susque- 
hanna,  and  on  the  three  other  sides  by  lands  of  persons  who 
are  named. 

2.  There  is  no  material  variance  between  the  writ  and 
the  award.  The  boundaries  are  different,  because  the  land 
mentioned  in  the  award  is  but  part  of  that  mentioned  in  the 
writ.  The  question  then  simply  is,  whether  the  plaintiff  in 
ejectment  may  recover  part  of  the  land  for  which  the  suit 
was  brought.  Without  doubt  he  may. 

3d,  4th  and  5th.  The  3d,  4th  and  5th  errors  depend  on 
the  same  principle.  It  is  objected  that  the  award  is  uncer- 
tain, because  it  cannot  be  understood  without  reference  to 
a  decision  of  the  board  of  property,  not  appearing  on  the 
record,  and  not  referred  to  with  sufficient  certainty.  I  am 
disposed  to  give  to  awards  a  candid  and  liberal  construc- 
tion. Critical  objections  tending  to  destroy  them,  are  not  to 
be  favoured.  When  this  award  mentions  a  decision  of  the 
board  of  property,  it  is  not  stretching  too  far  to  understand 
a  decision,  respecting  the  land  for  which  the  ejectment  was 
brought,  between  the  same  parties  or  persons  under  whom 
they  claim.  We  find  that  there  was  such  a  decision,  and  the 
writ  of  possession  was  issued  precisely  in  conformity  to  it. 
I  am  therefore  of  opinion  that  it  may  be  supported,  and 
that  the  judgment  should  be  affirmed. 

YEATES  J.  was  absent  in  consequence  of  sickness. 
BRACKENRIDGE  J.  concurred  with  the  Chief  Justice. 

Judgment  affirmed. 


OF  PENNSYLVANIA  39 


WERDM A N  against  FELMLY  and  others.  1813. 

o  . 

Stmbury, 

IN  ERROR.  JWwwfay, 

June  7. 

ERROR  to    Centre    County.    It  was  an  ejectment  by    if  a  deputy  sur- 
Werdman^  to  recover  a  tract  of  land  which  he  claimed  returns  two  *sur-C 
under  the  following  title.  On  the  29th  of  June  1772,  a  warrant™/8  a?  «U™ning, 

o  ft  when  ID  truth 

issued  in  the  name  of  Robert  Mackey  for  50  acres  of  land  there  are  a  hun- 

....          ,  .          .      ,  11      L         TT   •  j  .it.    dred  acres  be- 

adjommg  the  proprietaries  survey,  Reuben  Haines  and  thetween  tliem;  tj,is 
Nittany  mountain,  in  Perm's  creek  valley.  A  survey  was  made  j^from^tak^6 
on  this  warrant  15th  June  1774,  of  77T47  acres,  by  #7/&H»outinhi8own 

....  i  •    t     i         i  r  name  a  warrant 

maclay,  deputy  surveyor,  which  by  the  return  or  survey,  for  the  interme- 
adjoined  the  proprietaries1  survey  on  the  south,  John  Cum- ^mUtake^sfhs- 
tnlns  on  the  west,  and  Janet  Sharon  on  the  east.  The  dis-  covered.  Oiher- 

i  f   n  •  i    nr  *    wise,  if  he  frail- 

tance  between  the  surveys  or  Cummins  and  Sharon,  was  98  duiently  makes 
perches  by  the  survey,  whereas  in  point  of  fact  it  was  WOjjJJJJJJ^jJ*^ 
perches;  so  that  if  Mackey*  s  land  was  bounded  by  both  land  for  himself: 

n  •  inr  •  11  •  •  i      /-though  even  in 

Cummins  and  o haron,  it  would  contain  15O  acres  instead  or  tne  case  of  fraud 
77-fg  acres:  and  if  it  comprehended  the  amount  mentioned Oh 
in  the  survey,  there  was  a  large  surplus.  Janet  Sharon's  persons. 
survey  contained  311|  acres,  surveyed  under  an  order  for 
300  acres;  and  it  appeared  by  the  field  notes  of  Maclay, 
that  the  tracts  of  Mackey  and  Sharon  were  surveyed  by  him 
on  the  same  day,  that  each  called  for  the  other,  and  that  the 
lines  which  were  actually  run  for  Janet  Sharon  would 
contain  about  1OO  acres  more  than  the  311|  returned.  The 
land  in  dispute  was  that  which  the  lines  of  Janet  Sharon, 
as  run  by  the  deputy  surveyor,  would  include  beyond  the 
31 1|.  acres  in  the  survey:  or  in  other  words,  it  was  that 
which  lay  between  the  311  acre  survey  of  Sharon,  and  the 
77  acre  survey  of  Mackey,  allowing  it  to  run  the  98  perches 
from  the  survey  of  Cummins ;  the  plaintiff  claiming  under 
Mackeifs  warrant  and  survey  the  whole  land  between  Cum- 
mins and  Sharon.  On  the  9th  of  April  1774,  which  was 
before  the  survey,  Robert  Mackey  conveyed  to  James  Pot- 
ter. On  the  19th  of  April  1793,  Mackey' s  and  Sharon's  sur- 
veys were  returned  into  office,  without  any  correction  as  to 
boundaries.  On  the  1st  of  June  1794,  Potter's  son  conveyed 
to  Thomas  Gordon,  without  mentioning  any  quantity ;  but 
there  was  evidence  of  his  father's  having  sold  it  as  for  8O 


40 


CASES  IN  THE  SUPREME  COURT 


1813. 


WERDMAN 

v. 

FELMLT 
et  al. 


acres.  On  the  22d  of  November  1796,  Gordon  conveyed  to 
Spencer,  as  containing,  with  an  improvement,  170  acres 
more  or  less-:  and  Spencer  on  the  20th  of  June  1798  obtain- 
ed a  patent,  having  previously  executed  articles  of  agree- 
ment for  a  conveyance  to  Werdman  the  plaintiff. 

The  defendants  claimed  under  a  warrant  to  William  Ma- 
day,  dated  the  1st  of  July  1784,  for  the  vacant  land  between 
Mackey  and  Sharon.  On  this  warrant  a  survey  was  made 
on  the  15th  October  1784,  and  a  patent  issued  to  Maclay  \h& 
2d  of  September  1790. 

The  defendants  also  gave  in  evidence  that  Werdman  had 
obtained  a  warrant  for  the  vacancy  on  the  20th  of  November 
1784,  and  had  a  survey  returned  on  the  21st  of  September 
1795.  Werdman  did  not  claim  under  this  warrant  and  sur- 
vey, but  under  Mackey  }s :  and  the  object  of  the  evidence  was 
to  show  that  he  had  not  considered  Mackey's  survey  as 
comprehending  the  whole  land  between  Cummins  and 
Sharon* 

The  defendants'  counsel  contended,  that  Maclay,  who 
made  both  Mackey's  and  Sharorfs  surveys,  perceiving  that 
he  could  not  agreeably  to  his  instructions  return  the  whole 
quantity  intended  for  Janet  Sharon,  cut  off  100  acres  on 
the  west  end  of  that  survey ;  that  of  course  there  was  a  va- 
cancy at  that  end  of  100  acres  between  Sharon  and  Mackey  ; 
and  as  the  surveys  were  not  returned  into  office  until  19th 
May  1783,  through  forgetfulness  and  mistake  they  were 
represented  on  the  drafts  as  adjoining  each  other  :  and  that 
Maclay  had  the  same  right  as  any  one  else,  to  appropriate 
the  vacancy  to  himself  upon  the  discovery  of  the  mistake. 
The  plaintiffs  counsel  on  the  contrary  insisted  that  Maclay 
had  fraudulently  contrived  the  returns  to  secure  the  vacancy 
for  himself;  and  that  at  all  events,  having  returned  the  two 
surveys  as  adjoining,  he  was  estopped  from  denying  it. 

The  President  of  the  District,  on  this  part  of  the  case 
charged  the  jury,  that  if  the  survey  made  for  Mackey  really 
included  the  land  in  dispute,  and  was  so  returned,  their 
verdict  should  be  for  the  plaintiff;  and  that  it  should  like- 
wise be  for  the  plaintiff  if  W.  Maclay  fraudulently  made  the 
contrivance  to  secure  it  for  himself.  But  if  they  were  of 
opinion  that  it  was  not  intended  to  include  this  land  in 
Mackeifs  survey,  and  that  it  was  represented  in  the  return 


OF  PENNSYLVANIA.  41 

adjoining  Janet  Sharon  by  mistake,  the  verdict  should  be        1813. 
for  the  defendant. 

The  plaintiff  tendered  a  bill  of  exceptions. 


The  cause  was  argued  last  June  Term  by  Huston  and 
Duncan  for  the  plaintiff  in  error,  and  by  Burnside  and 
Hale  contra. 

Cur.  Adv.  vult. 

TILGHMAN  C.  J.  having  stated  the  title,  the  arguments 
of  the  counsel,  and  the  Court's  charge,  delivered  his  opinion 
as  follows: 

It  appears  very  clearly  to  me,  that  the  charge  delivered 
to  the  jury  was  right,  and  that  the  principle  contended 
for  by  the  plaintiff  cannot  be  supported.  The  instructions 
from  the  proprietaries  to  the  deputy  surveyor,  were  that 
not  more  than  ten  per  cent,  surplus  (exclusive  of  six  per 
cent,  for  roads,  &c.)  should  be  returned  on  any  warrant. 
Maclay  therefore  would  have  broken  his  instructions, 
if  he  had  returned  150  acres  on  Mackey's  warrant  for  5O 
acres,  or  400  acres  on  Janet  Sharon's  warrant  for  30O 
acrts.  But  if  such  return  had  been  made,  and  the  error  dis- 
covered by  the  surveyor  general,  it  might  have  been  sent 
back  with  orders  to  correct  it.  Or  if  the  proprietaries'  officers 
had  thought  proper,  they  might  have  accepted  the  survey, 
and  charged  the  warrantee  with  the  price  of  the  surplus. 
How  then  can  it  be  said  that  Maclay  is  estopped  from  shew- 
ing the  mistake  ?  If  the  land  had  belonged  to  him*  there 
might  be  some  colour  for  the  argument ;  but  as  it  was  the 
property  first  of  the  late  proprietaries  and  then  of  the  com- 
monwealth, an  estoppel  of  the  kind  set  up  would  be  depriv- 
ing one  man  of  his  property  for  the  negligence  of  another. 
If  indeed,  Maclay  had  been  guilty  of  a  fraud,  with  a  view 
of  securing  this  land  for  himself,  there  might  be  good  rea- 
son why  he  should  not  have  it,  although  it  would  be  open 
to  other  persons.  This  the  judge  told  the  jury,  and  in  say- 
ing so  he  went  far  enough.  For  if  Maclay  meant  to  do  jus- 
tice both  to  the  proprietaries  and  Mackey^  and  really  made 
a  mistake  in  his  return,  there  would  be  no  reason  why  upon 
the  mistake  being  corrected,  he  might  not  take  up  the  land 
as  well  as  another.  There  was  a  good  deal  more  evidence, 

VOL.  VI.  F 


WERDMAN 

•v. 

FELMLY 
etal. 


42 


CASES  IN  THE  SUPREME  COURT 


1813. 


WERDMAN 

v. 

FELMLY 
etal. 


which  I  have  not  mentioned,  because  although  it  might  have 
'had  weight  with  the  jury,  it  need  not  be  taken  into  consi- 
deration by  this  Court,  before  whom  the  only  question  is, 
whether  the  cause  was  properly  submitted  to  the  jury.  In  a 
case  of  this  kind,  where  the  plaintiff  insists  on  abiding  by 
the  return  of  survey  without  enquiring  into  errors,  it  is 
worthy  of  consideration,  that  before  there  was  a  confirma- 
tion of  this  survey  by  patent,  the  land  in  dispute  had  been 
granted  to  Maclay*  Now  it  is  certain,  that  before  a  patent 
had  been  granted  either  to  one  or  the  other,  the  board  of 
property  might  have  enquired  into  the  whole  matter,  cor- 
rected errors,  and  done  justice  to  all  parties.  The  charge 
of  the  Court  placed  the  cause  before  the  jury,  just  as  if  it 
had  been  before  the  board  of  property,  and  I  do  not  see  what 
more  the  plaintiff  ought  to  have  desired.  I  am  therefore 
of  opinion  that  the  judgment  should  be  affirmed. 

YEATES  J.  The  plaintiff  claimed  under  a  warrant  issued 
to  Robert  Mackey  for  50  acres  of  land,  dated  29th  June 
1772,  and  a  survey  made  thereon  15th  June  1774,  said  to 
contain  77  -£$  acres  and  to  adjoin  the  proprietary  manor, 
Janet  Sharon  and  John  Cummings.  James  Potter,  Esq. 
made  use  of  Mackey's  name  in  taking  out  the  warrant.  Pre- 
vious to  the  survey,  Mackey  on  the  9th  April  1774,  executed 
to  Potter  a  deed  poll  for  a  nominal  consideration  without 
specifying  any  quantity  of  land  ;  and  in  like  manner  on  the 
1st  of  June  1794,  Potter  conveyed  to  Thomas  Gordon,  in 
consideration  of  80/.  On  the  22d  of  November  1796,  Gordon 
conveyed  to  Thomas  Spencer,  the  survey  made  in  the  name 
of  Mackey,  and  some  adjoining  lands  claimed  by  improve- 
ment, supposed  to  contain  170  acres  more  or  less,  and  Spen- 
cer, on  23d  November  1798,  entered  into  articles  of  agree- 
ment with  John  Werdman  the  plaintiff,  describing  Mackey's 
survey  particularly.  The  sole  question  was,  whether  this 
survey  included  the  lands  in  controversy  ?  If  it  so  included 
them,  it  was  admitted  upon  the  trial  that  the  verdict  ought 
to  have  been  rendered  for  the  plaintiff  in  error. 

The  plaintiff's  gi-eat  reliance  rested  on  the  grounds  that 
this  survey,  as  returned  by  William  Maclay,  and  also  his 
field  notes  thereof,  called  for  a  beginning  post,  a  corner  of 
Janet  Sharon  and  the  proprietary  tract,  and  that  the  sur- 
vey on  Sharorfs  warrant,  which  was  the  property  of  Ma- 


OF  PENNSYLVANIA. 


43 


V. 

FELMLY 
etal. 


clay,  also  called  for  Mackey  as  the  adjoining  tract.    It  is  in-        1813. 
sisted  that  it  was  not  competent  to  Maclay^  or  any  persons    \VEHDMAN 
claiming  under  him,  to  allege  and  contest  that  the  two  sur- 
veys did  not  adjoin  each  other. 

It  was  in  my  idea  properly  submitted  to  the  jury,  by  the 
president  of  the  Court,  as  a  fact  for  their  decision,  whether 
these  returns  were  occasioned  by  mistake  and  over-sight, 
whether  the  acts  of  the  deputy  surveyor  were  tainted  by 
design  and  fraud,  or  whether  the  actual  survey  made  on  the 
ground  for  Mackey^  really  comprehended  the  tract  in  dis- 
pute. 

It  has  often  been  determined  by  the  judges  of  this  Court, 
that  the  appropriation  of  vacant  lands  by  survey  to  individual 
use,  is  founded  upon  what  in  truth  has  been  really  transacted 
on  the  spot  by  the  surveyors.  A  return  of  survey  may  be 
erroneous,  either  in  the  courses  or  distances,  or  the  adjoining 
land  which  it  represents.  It  may  be  corrected  by  natural  or 
artificial  boundaries,  or  other  plain  circumstances,  clearly 
shewing  that  the  survey  as  returned  ought  not  implicitly 
to  govern.  It  would  be  going  a  most  unwarrantable  length, 
to  assert  that  the  inaccuracies  or  mistakes  of  deputy  sur- 
veyors as  to  the  position  of  lands,  supposed  to  adjoin  other 
surveyed  tracts,  should  operate  conclusively,  either  on  the 
late  proprietaries  or  the  Commonwealth.  The  most  that 
can  be  said  of  a  return  of  survey,  is,  that  it  shall  be  pre- 
sumed to  be  correct  throughout,  until  the  contrary  be  clearly 
shewn;  and  I  will  readily  admit,  that  this  principle  should 
most  strongly  hold,  in  cases  where  the  surveyor  himself 
would  avail  himself  of  a  supposed  mistake,  for  his  own  ad- 
vantage. We  are  taught  by  experience,  that  the  prejudices 
of  jurors,  in  such  instances,  run  strongly  against  the  artists. 

From  the  detail  of  the  evidence  which  accompanied  the 
charge,  it  appears  that  strong  circumstances  existed  in  this 
case,  from  whence  it  might  fairly  be  inferred  that  an  unin- 
tentional mistake,  free  from  all  fraud,  might  be  ascribed  to 
the  deputy. ' 

The  real  distance  between  Cutnmmg's  and  Sharon's  lines 
is  found  to  jbe  nearly  190  perches,  instead  of  90  perches, 
marked  in  the  draft;  and  if  Mackeifs  survey  is  to  adjoin 
Sharon's,  the  area  of  the  former  instead  of  being  TT-pj 
acres,  would  exceed  150  acres.  Besides,  Mr.  Potter,  who 


44 


CASES  IN  THE  SUPREME  COURT 


1813. 


WEKDMAN 

v. 

FELMLY 
etal. 


took  out  the  warrant,  and  held  the  land  above  twenty  years, 
"never  set  up  a  pretence  to  this  large  overplus.  When  he 
was  about  selling,  he  claimed  about  80  acres  under  his 
survey.  And  the  plaintiff  himself,  who  executed  his  own 
warrant  of  20th  November  1784,  lays  down  the  survey 
made  thereon,  as  occupying  the  intermediate  space  between 
Mackey  and  Sharon.  His  claim  under  this  title  he  now 
prudently  abandons.  Moreover  it  appeared  unquestionably, 
from  the  field  notes  of  Maclay,  that  the  lands  originally 
surveyed  under  the  warrant  of  Sharon,  (the  lines  thereof 
corresponding  with  the  draft  returned  in  every  particular,) 
comprehended  the  lands  for  which  the  ejectment  was 
brought,  and  actually  included  100  acres  more  than  were 
afterwards  returned  on  it.  There  was  a  strong  probability 
therefore,  that  Maclay  threw  off  that  surplus  quantity,  under 
an  apprehension  that  the  return  of  the  whole  would  not  be 
accepted  in  the  office  of  the  surveyor  general.  If  he  had  ad- 
hered to  this  large  survey,  there  could  have  been  no  pre- 
tence of  claim  under  Mackey  to  the  lands  in  question;  and 
by  taking  out  a  new  warrant  in  his  own  name  on  the  1st 
yuly  1784,  for  the  lands  thus  thrown  out,  procuring  a  sur- 
vey to  be  made  in  October  following,  and  patenting  the 
lands  on  the  2d  September  1790,  he  conferred  no  additional 
efficacy  on  the  survey  theretofore  made  under  the  right  of 
Mackey.  Mr.  Potter  did  not  feel  himself  agrieved  thereby, 
but  he  and  the  different  proprietors  of  Mackey*s  warrants, 
by  their  several  transfers  recognized  the  survey  made  for 
Maclay  under  the  warrant  in  his  own  name,  and  made  no 
pretensions  to  the  lands  in  controversy. 

It  forms  however  no  part  of  our  duty  to  determine, 
whether  under  this  combination  of  circumstances,  the  jury 
were  justified  in  finding  that  the  survey  of  Mackey  excluded 
the  lands  in  dispute.  If  they  returned  a  verdict  against  the 
weight  of  evidence,  the  legal  appropriate  remedy  of  the 
plaintiff  was  an  application  to  the  Court  of  Common  Pleas 
on  a  motion  for  a  new  trial,  when  the  just  discretion  of  the 
Court  would  be  exercised.  We  are  called  upon  to  pro- 
nounce whether  that  Court  erred  in  submitting  the  extent  of 
Muckers  survey  to  the  jury,  as  a  question  of  fact  to  be  de- 
cided by  them,  or  whether  the  same  was  exclusively  the 
province  of  the  Court  as  a  matter  of  law.  For  the  reasons 


OF  PENNSYLVANIA.  45 

I  have  given  I  am  clearly  of  opinion,  that  the  Court  have         1813. 
decided  correctly  on  the  occasion,  and  that  the  judgment  of    WERDMAN 

the  Court  of  Common  Pleas  be  affirmed.  v. 

FELMLY 

BRACKENRIDGE  J.  was  prevented  by  sickness  from  hear- 
ing the  argument. 
6b  45  Judgment  affirmed. 

3sr203  J    ° 

10s t 199 
16s,187 

17s i 412  , 

17sr413 

lr  415 

4wl52 

67W403    Lessee  of  HAMILTON  against  MARSDEN.  *  *„ 

82    464  «>  SiUlbury, 

104    424  E-Donu  Monday, 

IN  ERROR.  June  7. 

THIS  was  a  writ  of  error  to  the  Common  Pleas  of  Mif-    Although  a  les- 
•*     see  cannot  contro- 
Jlm  county,  with  which  were  returned  two  bills  of  ex-  vert  the  title  of 

ceptions  to  the  opinion  of  the  Court  below,   in   admitting i-u^cxlsu^niy"* 

evidence.  where  the  lease 

has  been  taken 

First  bill.  The  suit  was  an  ejectment  for  a  tract  of  land,  without  fraud, 
which  the  plaintiff  claimed  derivatively  under  a  location  of^haviouronftlic 
the  13th  Mail  1769;  and  having  proved  a  lease  of  the  pre-part  of  the  lessor, 

.   y     ...  •*...»  cv         and  not  where  the 

mises  by  himself  to  a  certain  John  Magee,  on  the  6th  juneiessor  hasthreat- 
1785,  for  five  years,  from  the  1st  of  April  1785,  and 


the  defendant  claimed  under   Maree,  he  rested  his  case.land  b->'  fo 

ri^t        .  .  i  11-  •        arms,  unless  he 

Ihe  defendant  then,  in  order  to  enable  him  to  prove  title  would  take  the 
adverse  to  the   plaintiff,  offered  a  witness  to  prove,    that  e^ehe  handwrit- 
Magee  had  taken  a  lease  of  the  premises  from  a  certain  !ns  of.  a  subscrib- 

er n  j    i     •  L  r     i      lnB  Wltness  to  a 

James  Brown,  and  being  m  possession  by  virtue  or  the  lease,  disinterest- 
lease,  the  plaintiff  came  to  the  land  with  two  men  armed  hisattestingTmay 
with  guns,  and  threatened  to  turn  Maree  off,  unless  he  be  Proved  if  he 

.  j       .  .  becomes  interest- 

would  take  a  lease  from  Hamilton;  and  in  consequence  he  ed  subsequently, 
did  take  the  lease.  The  Court  admitted  the  evidence, 


the  plaintiff's  counsel  tendered  the  first  bill.  A  lease,  or 

o  r|,  .  bond,  may  be 

Second  bill.    The  defendant  having  proved  the  ci  r  cum  -read  in  evidence 


stances  attending  Hamiltsri's  lease,  then  produced  the  lease  BS 
from  Brown  to  Magee,  to  which  there  were  two  subscribing  subsctibi".Kwit" 

07  o  ness  wlio  has  be- 

witnesses,  John  Marsden,  the  present  defendant,  and  Tostcome  interested, 
Marsden,  both  disinterested  at  the  time  of  the  attestation,  partV^w'itho'ut1 
and  had  since  become  interested  by  their  own  act  :  and  hav-'1I00.fot  ^e,hard' 

'  writing  of  the  les- 

ing  nrst  proved  by  a  witness,  that  there  was  an  agreement  5  nsor  or  obligor:  but 
writing  between  Brown  and  Magee>  he  offered  to  prove  the  not  conduce8, 

and  under  suspi- 
cious circumstances,  further  proof  is  necessary 


46 


CASES  IN  THE  SUPREME  COURT 


1813.  handwriting  of  these  subscribing  witnesses,  as  a  ground  for 
Lessee  of  reading  the  lease  to  the  jury.  The  Court  admitted  the  evi- 
HAMILTON  dence,  the  lease  was  read,  and  the  plaintiff  tendered  the 

v'  second  bill. 

MARSDEN. 

Huston  and  Watts  for  the  plaintiff  in  error.  1.  Hamilton 
leased  to  Magee,  who  assigned  to  Read^  who  assigned  to  the 
defendant,  one  year  before  the  lease  expired  :  therefore  the 
defendant  came  in  under  the  plaintiff,  and  cannot  controvert 
his  title.  If  Brown's  title  was  to  be  set  up,  he  should  have 
been  made  defendant  on  the  record.  2.  There  are  two  ob- 
jections under  the  second  bill.  First,  that  the  subscribing 
witnesses  had  become  interested  by  their  voluntary  act,  and 
the  rule  applies  to  accidental  or  involuntary  interest.  Glynn 
v.  Bank  of  England  (a),  Tilley^s  case  (£),  Goss  v.  Tracey  (c). 
Secondly,  that  where  from  interest  or  death  the  handwriting 
of  the  witness  is  offered  to  be  proved,  it  should  be  attend- 
ed with  proof  of  the  party's  handwriting  ;  Bull.  N.  P.  255. 
Peake's  Ev.  66.  otherwise  frauds  innumerable  might  be 
committed. 


Burnside  and  Duncan  for  defendant  in  error.  l.The  rule 
that  a  person  coming  into  possession  under  a  landlord,  or 
accepting  a  lease  from  him,  shall  not  be  permitted  to  con- 
trovert his  title,  is  founded  in  policy  to  preserve  good  faith 
and  to  prevent  fraud.  There  was  no  mala  Jides  in  the  de- 
fendant's giving  the  evidence  proposed,  because  it  shewed 
violence  and  outrage  on  the  part  of  the  plaintiff,  in  impos- 
ing the  lease  upon  Magee.  The  plaintiff  would  otherwise 
have  reaped  a  benefit  from  his  own  wrong.  2.  The  paper 
was  sufficiently  proved  to  go  to  the  jury.  In  addition  to  the 
proof  of  handwriting,  there  was  corroborating  evidence  of 
an  agreement;  though  in  the  first  instance,  proof  of  the 
handwriting  was  sufficient.  As  to  voluntary  or  accidental 
interest,  there  is  no  such  distinction.  Davisonv.Blwner  (</), 
Godfrey  v.  Norris  (e),  Lesher  v.  Levan  (/),  3  Com.  Dig. 
280.  Evid.  B.  3.  Jones  v.  Mason  (£•),  Henry  v.  Philips  (A), 


(a)  2  Ves.  42. 

(6)  2  Ld.  Ray.  1008. 

(c)  1  P.  Wms.  288. 


(d)  1  Dall.  123. 

(e)  1  Stra.  33. 
(/)  2  Dall.  96. 


(ff)  2  Stra.  833. 
(A)  2  Jtk.  48. 


OF  PENNSYLVANIA.  ±\ 

Fox  v.  Reel  (i)»  Sluby  v.  Champlin  (/$),  Clark  v.  Sanderson        1813. 
(/),  January  v.  Gcwfoian  (w).  Lessee  of 

HAMILTON 

The  case  was  argued  at  June  Term  last,  and  held  under          v. 
advisement  to  this  day.  MARSDEN. 

TILGHMAN  C.  J.  The  plaintiff  proved  that  the  defendant 
claimed  under  "John  Magee,  and  that  Magee  had  taken  a 
lease  from  him,  (the  plaintiff)  and  therefore  contended,  that 
neither  the  said  Magee,  nor  the  defendant  who  claimed  un- 
der him,  should  be  admitted  to  controvert  the  plaintiff's 
title.  On  the  other  hand,  the  defendant  offered  to  prove 
that  Magee  had  taken  a  lease  from  James  Brown,  and  en- 
tered into  possession  by  virtue  of  it,  after  which  the  plain- 
tiff came  to  the  land  with  two  other  men  with  guns,  and 
threatened  to  turn  Masree  off,  unless  he  took  a  lease,  in 
consequence  of  which  he  did  take  a  lease  from  the  plain- 
tiff. The  court  admitted  this  evidence ;  and  it  appears  to 
me  that  they  were  right  in  so  doing.  That  a  tenant  should 
not  be  permitted  to  contest  the  title  of  his  landlord,  is  a 
liberal  principle  for  the  encouragement  of  justice  and  good 
faith,  but  it  was  certainly  a  departure  from  the  strict  rule 
of  law,  and  therefore  must  not  be  used  as  an  instrument 
of  fraud  or  violence.  If  the  plaintiff  were  permitted  to  avail 
himself  of  it  in  the  present  instance,  it  would  be  suffering 
him  to  defeat  Brown's  title  merely  by  his  own  outrageous 
conduct.  This  case,  therefore,  forms  an  exception  to  the 
general  rule,  which  is  founded  on  the  presumption  of  the 
lease  being  taken  without  fraud,  force  or  illegal  behaviour 
on  the  part  of  the  lessor. 

The  defendant  having  proved  the  circumstance,  under 
which  the  lease  was  taken  by  Magee  from  the  plaintiff, 
went  on  to  offer  evidence  of  the  lease  from  Brown  to  Ma- 
gee.  He  produced  that  lease  to  which  there  were  two  sub- 
scribing witnesses,  Tost  Marsden,  and  the  defendant  John 
Marsden,  both  disinterested  at  the  time  when  the  lease  was 
made,  though  interested  at  the  time  of  trial.  Having  proved 
by  the  oath  of  Elizabeth  Foster,  that  there  was  an  agree- 

(/)  3  John.  477.  (*•)  4  John.  461.  (I)  3  Sinn.  192.  (m)  1  DM.  208. 
fitfeas  to  handwritingof  witnesses,  1  Bos-  fcf  Pull.  360.  7  Z>.  &? E.  265-  Dong. 
<?  5  D.  £?£.  371.  2'East.  250.  183.  1  Pcake,  99. 


48 


1813. 


Lessee  of 
HAMILTON 

v. 
MARSDEN. 


CASES  IN  THE  SUPREME  COURT 

ment  in  writing  between  Brown  and  the  said  Magee,  the 
"defendant  offered  evidence  of  the  handwriting  of  the  sub- 
scribing witnesses,  which  was  admitted  by  the  Court.  The 
general  rule  is  conceded,  that  where  a  subscribing  witness 
becomes  interested  after  the  time  of  subscribing,  his  hand- 
writing may  be  proved.  But  the  plaintiff's  counsel  insist, 
that  this  rule  is  not  applicable  to  cases  where  the  witness 
becomes  interested  by  his  oivn  voluntary  act.  I  find  no  war- 
rant for  this  distinction.  The  authorities  are  to  the  con- 
trary. In  Godfrey  v.  Norrls,  1  Str.  34,  the  plaintiff  was  ad- 
ministrator de  bonis  non  of  the  obligee.  It  was  his  own  act  to 
become  administrator,  yet  being  the  only  subscribing  witness 
to  the  bond,  his  handwriting  was  suffered  to  be  proved.  There 
are  other  cases  where  similar  evidence  was  admitted.  The 
proof  of  the  handwriting  of  the  subscribing  witnesses  in 
the  present  instance,  was  corroborated  by  the  previous  testi- 
mony of  Elizabeth  Foster,  who  proved  that  Magee  was  in 
possession  under  Brown  before  he  took  the  lease  from  the 
plaintiff,  and  who  also  proved  that  there  was  an  agreement 
in  writing  between  Brown  and  Magee.  The  evidence  would 
have  been  more  complete,  if  the  handwriting  of  the  lessor 
had  been  proved.  But  I  think  there  was  enough  to  suffer  it 
to  go  to  the  jury.  The  Supreme  Court  of  Nerv-  Tork  decided 
in  Sluby  v.  Champlin,  4  Johns.  461,  that  a  bond  might  be 
read  in  evidence,  on  proof  of  the  handwriting  of  the  sub- 
scribing witness,  who  was  absent  in  foreign  parts,  without 
proof  of  the  handwriting  of  the  obligor.  This  Court  have 
never  decided  to  the  contrary;  and  there  seems  to  be  good 
reason  for  adopting  the  same  rule.  The  evidence  is  not 
conclusive;  under  suspicious  circumstances  the  jury  might 
not  be  satisfied  without  further  proof.  I  am  of  opinion  on 
the  whole,  that  the  Court  below  were  right  in  both  points, 
and  therefore  the  judgment  should  be  affirmed. 

YEATES  J.  The  question  of  fact  in  this  case  was,  whether 
the  defendant  came  into  possession  of  the  tract  of  land  in 
dispute  under  the  lease  said  to  have  been  made  by  James 
Brown  to  John  Magee,  dated  1st  May  1783,  or  under  the 
lease  made  by  the  lessor  of  the  plaintiff  to  Magee,  dated 
6th  June  1785.  It  is  agreed  on  all  hands,  that  tenants  and 
other  persons  claiming  or  coming  into  possession  under 


OF  PENNSYLVANIA. 


them,  shall  not  be  admitted  to  set  up  an  adverse  title  in  a 
third  person  against  their  landlord,  whose  title  such  lessees  ~ 
had  acknowledged,  and  held  under.  They  should  surrender 
up  the  possession  according  to  their  original  contract,  when 
the  lease  was  expired;  and  if  they  should  think  proper  to 
buy  in  any  other  right,  they  should  institute  an  ejectment 
for  the  recovery  of  the  premises  under  such  right.  2  Binney, 
471,  2,  3. 

Upon  the  first  bill  of  exceptions,  I  can  see  no  difficulty. 
The  defendant  might  well  shew,  that  Magee  entered  into 
possession  under  Brown,  and  accepted  a  lease  from  him  ; 
that  he  was  afterwards  threatened  to  be  forcibly  dispossess- 
ed, unless  he  agreed  to  become  the  tenant  of  Hamilton,  and 
that  he  took  a  lease  from  Hamilton,  in  consequence  of  such 
threats ;  that  he  assigned  his  possession  to  John  Read,  and 
that  the  defendant  having  purchased  the  right  of  Brown,  the 
original  landlord,  came  in  under  his  lessee.  It  was  not  com- 
petent to  Hamilton  to  found  his  pretensions  to  a  recovery, 
upon  a  supposed  breach  of  faith  in  Magee,  his  tenant,  when 
that  tenancy  was  superinduced  by  immoral  conduct  on  his 
part,  and  using  improper  means  to  compel  Magee  to  violate 
his  previous  engagements  entered  into  with  Brown.  The 
plaintiff  made  a  case  wherein  the  jus  possessionis  formed 
the  chief  subject  of  inquiry  ;  and  it  became  the  province  of 
the  jury,  not  of  the  Court,  to  decide,  on  a  careful  review  of 
the  evidence,  in  whom  the  right  of  landlord  fairly  attached. 

The  second  bill  of  exceptions  requires  a  more  particular 
examination.  The  primary  rule  of  evidence  is,  that  the  best 
evidence  which  the  nature  of  the  fact  is  capable  of,  shall 
always  be  required  ;  which  is  understood  to  mean,  that  no 
such  evidence  shall  be  admitted,  which  supposes  better  evi- 
dence in  the  power  of  the  party  to  produce.  If  a  deed  or 
other  instrument  in  writing  is  offered  in  evidence,  it  must 
be  proved  by  the  oaths  or  affirmations  of  the  subscribing 
witnesses;  but  if  such  witnesses  cannot  be  had  at  the  trial, 
a  secondary  mode  of  proof  is  allowed,  from  the  necessity  of 
the  case.  Thus  if  the  subscribing  witness  is  dead,  his  hand- 
writing may  be  proved.  12  Finer,  224.  pi.  10,  Comb.  248  ; 
2  Atk.  48 ;  1  Johns.  Ca.  230.  So  if  the  witness  become  blind, 
1  Ld.  Ray.  734.  So  if  he  be  beyond  sea,  or  the  process  of 
VOL.  VI.  G 


1813. 


v. 
MAUSDEN. 


CASES  IN  THE  SUPREME  COURT 


1813. 


Lessee  of 
HAMILTON 

v. 
MAUSDEN. 


the  Court,  12  Mod.  521.  604;  12  Vin.  224,  pi.  12,  13.  Or 
'if  he  becomes  infamous,  2  Stra.  833,  or  interested,  12  Fin. 
5.  pi.  6.  1  Eg.  Ca.  Ab.  224,  2  Ves.  42,  2  F*r».  70O.  This 
is  the  mode  of  proof  known  to  the  law  from  immemorial 
usage,  though  I  still  adhere  to  the  opinion  which  I  express- 
ed in  Clark  v.  Sanderson,  3  Binney,  196,  that  the  hand- 
writing of  the  party  to  the  instrument  would  be  stronger 
proof  of  its  execution,  than  the  signature  of  any  witness 
proved  by  other  witnesses.  But  we  must  take  the  law  as  we 
find  it,  and  it  would  be  attended  with  much  uncertainty  and 
inconvenience,  if  the  rules  of  evidence  could  be  changed  ac- 
cording to  our  abstract  ideas  of  the  reasonableness  of  them, 
from  time  to  time. 

If  indeed  the  disability  of  the  subscribing  witness  had 
attached  prior  to  the  attestation  of  the  instrument,  I  should 
hold  that  the  ground  of  incompetency  which  interdicted 
them  from  giving  testimony,  equally  applied  to  the  admis- 
sion of  evidence  respecting  their  handwriting.  Thus  a  wife 
witnessing  a  paper  whereby  her  husband  obtained  a  benefi- 
cial interest,  or  a  co-partner  subscribing  one,  whereby  the 
firm  of  the  house  derived  an  advantage,  proof  of  their  hand- 
writing could  not  be  received.  So  also  where  a  witness,  prior 
to  his  attestation,  had  been  convicted  of  a  crimenfalst.  But 
this  objection  does  not  arise  on  the  second  bill  of  excep- 
tions, which  barely  states  that  John  Marsden  was  the  de- 
fendant in  the  suit,  and  that  Tost  Marsden  wss  admitted  to 
be  interested. 

The  question  then  before  us  is  reduced  to  a  single  point, 
whether  on  proof  of  the  hand  writing  as  the  subscribing 
witnesses,  who  had  afterwards  become  interested,  the  lease 
from  Brovvn  to  Magee  ought  not  to  have  been  read  to  the 
jury? 

A  distinction  has  been  taken  in  a  late  English  case,  be- 
tween the  proper  proof  where  a  subscribing  witness  is  dead, 
and  where  he  resides  in  a  foreign  country,  or  by  the  com- 
mission of  some  crime  or  the  accruing  of  some  interest  sub- 
sequent to  the  execution  of  the  instrument,  has  become  an 
incompetent  witness  ;  that  in  the  first  case  where  he  is  dead, 
it  is  sufficient  to  prove  his  handwriting  alone,  but  in  the 
other  cases  it  is  usual,  and  seems  to  be  necessary,  to  prove  the 
handwriting  of  the  party  to  the  deed  also.  1  Peahens  Evid. 


OF  PENNSYLVANIA.  51 

66.  The  law  in  England,  on  this  subject,  appears  not  to  be        1813. 


MARSDEN. 


fully  settled,  and  I  am  not  aware  of  any  determinations  Lessee  of 
there,  previous  to  the  American  revolution,  requiring  proof  HAMILTON 
of  the  handwriting  of  the  party,  in  aid  of  the  handwriting 
of  the  attesting  witnesses  who  have  become  interested  :  nor 
do  I  know  of  any  decision  amongst  ourselves  to  that  effect. 
Indeed  it  has  been  decided  in  the  Supreme  Court  of  Neiv 
Tork  on  solemn  argument,  that  where  the  subscribing  wit- 
ness to  a  bond  is  dead,  proof  of  hig  handwriting  is  suffi- 
cient without  proving  the  hand  of  the  obligor.  Mott  v. 
Doughty,  1  Johns.  Ca.  230.  On  that  occasion  the  Court 
say,  that  the  cases  in  support  of  the  rule  are  reasonable, 
that  some  relate  to  absent  witnesses,  but  the  principle  in  all 
is  the  same.  The  same  determination  was  given  in  Slubij 
v.  Champ/in,  4  Johns.  467.  in  the  cases  of  witnesses  out 
of  the  state.  Such  has  been  the  practice  of  our  own  Courts 
in  repeated  instances,  and  I  can  refer  to  one  case  in  particu- 
lar, at  a  Circuit  Court  in  Northampton  county,  before  Judge 
Smith  and  myself  \njune  1814,  between  Joseph  Taylor  and 
Jacob  Meckley  wherein  the  doctrine  was  fully  considered. 
To  establish  a  new  rule  now,  would  be  a  manifest  surprize 
on  suitors,  who  conformed  themselves  to  the  ancient  sys- 
tem of  evidence,  and  could  only  be  justified  on  the  clearest 
grounds  of  common  safety  and  public  convenience.  I  regard 
the  proof  of  the  handwriting  of  the  attesting  witnesses  to 
this  lease,  who  had  become  incompetent  by  an  interest  ac- 
cruing to  them  subsequent  to  the  execution  of  the  demise, 
as  regular,  and  that  it  justified  the  Court  in  permitting  the 
same  to  go  to  the  jury.  Scarcely  can  a  case  be  put  wherein 
frauds  may  not  be  practised.  Where  suspicious  circum- 
stances occur,  it  becomes  the  duty  of  the  Court  to  apprize 
the  jury  thereof,  and  put  them  on  their  guard;  but  I  consi- 
der the  lease  as  proved  here,  to  be  prima  facie  evidence  of 
every  thing  on  the  face  of  the  paper,  which  imports  to  be 
sealed  by  thej  party.  I  am  therefore  of  opinion  that  the 
judgment  of  the  Court  of  Common  Pleas  for  Mifflin  county 
be  affirmed. 


BRACKENRIDGE  J.  concurred. 


Judgment  affirmed. 


52  CASES  IN  THE  SUPREME  COURT 


CAVENCE  against  BUTLER. 

1813'  IN  ERROR. 


Sunburn,  "¥T^ 

Wednesday,         QjRROR  to  the  Common  Pleas  of  Northumberland. 

June  9. 
The  Act  of  20th 

wSdirecu'that     In  the  Court  below  h  was  an  aPPeal  b^  Caoencc  the  de- 
the  defendant      fendant,  from  the  judgment  of  a  justice,  for  74  dollars  63 

•who  appeals  from  __  .  .  ,  .  .  . 

the  judgment  of  a  cents.      Upon  his  appeal  he  caused  security  to  be  given  in 
l^T^Jz/L     tne  nature  of  special  bail,  in  the  sum  of  140  dollars  ;  but  he 


bound -with  surety  did  not  join  in  the  recognizance,  and  what  was  the  form  of 
in  the  nature  of      .  .  ...  ••,-•,  .  < 

special  bail,  is     the  recognizance  did  not  appear,  as  it  did  not  come  up  with 

satisfied  by  his       the  recOrd. 

finding  surety, 

without  joining  in      After  the  appeal  was  entered,  the  defendant  entered  a 

the  recognizance-       .         c        ,  .  .    .       . 

if  special  bail  rule  or  arbitration,  and  both  parties  attended  and  chose 
toPu?eaCommonl  arbitrators.  The  plaintiff  then  obtained  a  rule  to  shew  cause, 
Pleas  by  the  de-  why  the  appeal  should  not  be  quashed.  Afterwards  the 

fendant,  is  irregu-    .    .      .  _.         iiri  iir  i 

lai-iy  or  informally  plaintiff  and  defendant  appeared  before   the  arbitrators  and 
taken,  and  after   trje(j  the  cause.     The  arbitrators  finally  awarded  that  the 

the  cause  is  in  * 

Court,  the  plain-  plaintiff  had  no  cause  of  action  ;  the  plaintiff  appealed,  and 
arihratoreand016  about  six  months  afterwards  the  motion  to  quash  the  ap- 

pleads  his  cause,    peal  was    after  argument,  allowed, 
the  informality  ' 

of  bail  is  waived.  The  ground  for  quashing  the  appeal  was  an  irregularity 
in  entering  special  bail,  the  defendant  himself  not  being 
bound  according  to  the  terms  of  the  fourth  section  of  the 
Act  of  2Oth  March  1810,  and  also  some  defect  in  form, 
which  did  not  appear  in  the  record. 

The  answer  to  the  irregularity  in  form,  was  a  waiver  by 
appearing  before  arbitrators  and  trying  the  cause  ;  and  the 
joinder  of  the  appellant  himself,  was  denied  to  be  necessary. 

Maus  for  plaintiff  in  error. 
Bradford  contra. 

TILGHMAN  C.  J.  The  defendant  in  error  contends,  that 
the  appeal  was  properly  quashed  for  two  reasons.  First,  be- 
cause the  defendant  himself  was  not  bound  along  with  his 
sureties  in  the  recognizance  in  nature  of  special  bail. 
Second,  because  the  recognizance  was  not  taken  in  the  form 
prescribed  by  law.  The  question  arises  on  the  fourth  sec- 


OF  PENNSYLVANIA. 


BUTLER. 


tion  of  the  act  of  20th  March  1810,  commonly  called  the  1813. 
one  hundred  dollar  act.  This  act  directs  that  where  the  de-  CAVENCE 
fendant  is  the  appellant,  he  shall  be  bound  with  surety  in  the 
nature  of  special  bail  in  a  sum  sufficient  to  cover  the  sum 
in  controversy,  all  the  costs  which  have  accrued  or  may  ac- 
crue, a  counsel  fee  of  four  dollars,  and  an  allowance  of 
fifty  cents  a  day  for  every  day  the  appellee  shall  attend  on 
such  appeal.  The  law  having  required  that  the  defendant 
himself  shall  be  bound,  it  is  said  that  because  he  was  not 
bound,  the  appeal  was  irregularly  entered,  and  that  the  act 
ought  to  receive  a  strict  construction,  because  the  legisla-. 
ture  intended  to  throw  all  possible  obstructions  in  the  way 
of  an  appeal.  I  have  said  on  former  occasions,  and  now  re- 
peat, that  as  the  appeal  is  for  the  purpose  of  obtaining  a 
trial  by  jury,  and  the  obstruction  of  the  appeal  is  conse- 
quently the  obstruction  of  trial  by  jury,  I  never  can  pre- 
sume that  the  legislature  intended  to  throw  any  greater  im- 
pediment in  its  way  than  was  necessary  for  the  security  of 
that  party,  in  whose  favour  the  judgment  has  been  given 
by  the  justice  of  the  peace.  All  that  is  necessary  for  him  is 
to  have  good  security.  Whether  that  security  be  given  by 
the  defendant  himself  or  by  others  for  him,  is  perfectly  im- 
material to  the  plaintiff.  But  it  is  of  great  consequence  to 
the  defendant,  to  be  able  to  give  the  necessary  security 
without  the  inconvenience  of  attending  in  person,  which 
may  be  sometimes  so  great  as  to  cut  him  off  from  his  ap- 
peal. In  order  therefore,  to  effectuate  the  true  intent  of  the 
legislature,  the  expressions  he  shall  be  bound  with  surety, 
&JV.,  are  to  be  construed  he  shall  be  bound  by  surety,  &?c., 
or  he  shall  find  surety.  It  is  more  analagous  to  special  bail 
that  the  defendant  should  not  be  bound  himself,  for  he 
never  joins  in  a  recognizance  of  special  bail.  A  point  very 
much  like  the  present  was  decided  on  the  Statute,  3  Jac. 
1.  c.  8,  by  which  it  was  enacted,  that  executions  on  writs  of 
error  shall  not  be  staid,  unless  the  person  in  whose  name  the 
writ  of  error  is  brought,  shall  be  bound  with  sufficient 
sureties,  &?c.  The  uniform  construction  on  this  statute  has 
been,  that  if  sufficient  security  is  entered,  the  execution 
shall  be  staid  although  the  party  himself  is  not  bound,  be- 
cause the  end  of  the  law  is  answered  by  giving  sufficient 
security.  Garth.  131.,  3  Vin.  465.  H.  pi.  3.  This  construe- 


54 


CASES  IN  THE  SUPREME  COURT 


1813. 


CAVENCE 

v. 
BUTLER. 


tion  is  so  reasonable,  so  convenient,  and  so  well  calculated 
"  to  attain  the  real  object  of  the  act  of  assembly,  that  I  am 
clearly  of  opinion  it  is  right,  although  the  Courts  of  Com- 
mon Pleas  of  several  districts  have  thought  otherwise. 

2.  Whether  the  recognizance  was  taken  in  the  precise 
form  required  by  the  act  of  assembly  does  not  appear, 
because  we  have  not  a  copy  of  it,  but  only  the  justice's  cer- 
tificate of  the  substance  of  it.  It  appears  however,  that 
security  was  entered  in  double  the  sum  recovered,  and  the 
justice  supposed  that  it  was  entered  according  to  law.  I 
think  it  unnecessary  to  give  an  opinion  on  this  objection, 
because  even  if  the  recognizance  was  informal,  the  plaintiff 
has  waived  the  exception  by  appearing  before  the  arbitra- 
tors, and  pleading  his  cause,  after  he  had  moved  that  the 
appeal  should  be  quashed.  If  an  award  had  been  made  in 
his  favour,  we  should  have  heard  no  more  of  this  infor- 
mality. But  the  referees  having  reported  that  he  had  no 
cause  of  action,  he  recurs  to  his  old  objection,  that  the  ap- 
peal was  not  regularly  entered.  The  security  in  nature  of 
special  bail  was  for  the  benefit  of  the  plaintiff.  It  was  in 
his  power  therefore  to  waive  it,  and  permit  the  defendant's 
appeal  to  be  entered  without  security ;  and  he  has  waived  it 
by  going  on  to  trial  before  the  referees.  Upon  the  whole  I 
am  of  opinion  that  the  appeal  was  improperly  quashed,  and 
therefore  the  judgment  should  be  reversed*  The  record  is 
to  be  remitted  to  the  Court  of  Common  Pleas  in  order  that 
they  may  proceed  to  the  end  of  the  cause. 

YEATES  J.  was  absentia  consequence  of  sickness. 
BRACKENRIDGE  J.  concurred  with  the  Chief  Justice. 

Judgment  reversed. 


OF  PENNSYLVANIA.  55 


Yww9        IRISH  and  another  against  SCOVIL.  1813. 

"'  TV  vpunu  Sunbury, 

Wednesday, 

THIS  was  an  ejectment  in  the  Common  Pleas  of  Luzerne    A  deed  convey* 
county,  by  Scovil,  the  plaintiff  below,  against  Job  Irish,™*  land  within 

} '     }  ,.}  . ,     ' °  ,  the  seventeen 

for  a  tract  of  land  within  the  township  of  Claveracke,  one  of  townships  which 
the  seventeen  townships.  The  statement  of  the  plaintiff  was  j^  a^ordTn^to" 
filed  before  the  return  day  of  the  writ  against  Irish :  the the  provision  of 

,       .„.      r  11  •  i  T  •    ,  .the  act  of  4th 

sheriff  afterwards  returned  the  writ  served  as  to  Irish,  and  .tf/>r»7 1799,  and. 
also  as  to  Samuel  Needham,  whom  he  had  found  in  posses-  £u 


sion,  and  summoned  as  defendant.  ships,  and  to 

which  no  title  was 

The  issue  being  joined  upon  not  guilty,  the  plaintiff  gave  recited  to  be  de- 
in  evidence  a  patent  from  the  Commonwealth  to  himself,  Q^J[™n™^|lt 

dated  the  13th  of    Julu    1809,    for    189    acres    and    1  2O  or  ihe  proprieia- 

.  .        ,  i  •       i    •         «     i      .  nes  before  lhe 

perches,  in  the  above-mentioned  township,  being  the  land  4th  July  1776, 

in  dispute.  He  then  read  the  return  of  the  sheriff  to  prove  J^^^^6 
the  defendants'  possession,  and  rested  his  case.  townships,  though 

....  ,     .  bad  as  to  the  resj- 

The  defendants,  to  maintain  the  issue  on  their  part,  gave  due. 
in  evidence  a  certified  copy  of    a  certificate    under    seal,  j 
granted  by  the  commissioners  appointed  to  carry  into  effect 

,    ,  l\.       ..  „  ,3  .  1802,  to  prohibit 

the  provisions  of  the  act  or  4th  April  1799  and  its  supple-  the  recording  of 
ments,  to  Scovil,  dated  the  21st  of  January   1804,   for  totJJJ^&^Jj* 
No.  4,  in  Claveracke,  containing  189  acres  120  perches,  and  necticut  \\t\e, 

n-  •        •  •  i       i    r  o-i  (with  the  excep- 

then  offered  to  give  in  evidence  a.  deed  Irom  dcovtl  to  one  UOD  of  land  with- 
John  Brown,  dated  the  7th  of  November  1805,  and  pur-  i^SuJdS 
portinc:  to  have  been  acknowledged  on  the  same  dav  before  t»e  act  of  1799) 

r.        ,°  f        ,  I-LIJ-       thcacknowledg- 

a  jnstice  ol  the  peace  tor  Luzerne  county,  which  deed  in-  meut  of  such  a 
eluded  the  land  in  question,  and  also  other  land  not  within 


the  seventeen  townships,  but  within  the  county  of  Luzerne  ;'law^My  void,  and 

,  .11.  r  •  i       r          cannot  be  given 

but  it  contained  no  recital  of  or  reference  to  any  title  tromin  evidence,  even 
the  Commonwealth  of  Pennsylvania,  or  the  late  proprietaries  "itWn^town- 
before  the  4th  of  Julu  1776.  The  Court  rejected  the  deed,shiP«- 

i          i     .       i  -11      c  •  Statement  in 

and  sealed  a  bill  of  exceptions.  ejectment  against 

The  errors  insisted  upon,  were,  1.  the  rejection  of  the  fi^Vb^for^the 
deed  of   7th  November  1805;    2.    a  variance  between  the  first  term:  after- 

...  ,  ,.  1*1  i      wards  tlie  sheriff 

statement  or  declaration,  and  the  verdict  and  judgment  ;  the  according  t<>  the 
statement  being  against  Job  Irish  only,  and  the  verdict  and  ^Tum^ed 

judgment  against  Job  Irish  and  Samuel  Needham.  as  defendant  ano- 

ther pei-son  found 
in  possession. 

Held,  that  the  statement  was  right  ;  and  that  if  the  name  of  the  other  defendant  should  be  added, 
it  might  be  doue  after  verdict  and  judgment  below,  and  this  Court  would  consider  it  as  done- 


56 


1813. 


IRISH 
etal. 

v. 

SCOVIL. 


CASES  IN  THE  SUPREME  COURT 
Hall  and  Duncan  for  the  plaintiffs  in  error. 
Burnside  and  Bcelas  for  the  defendant  in  error. 

TILGHMAN  C.  J.  The  deed  from  R.  Scovtl,  the  plain- 
tiff below,  to  John  Broivn,  which  was  offered  in  evidence 
by  the  defendants,  and  rejected  by  the  Court,  contained  a 
conveyance  not  only  of  the  land  in  dispute,  which  lies  within 
the  township  of  Claveracke,  (one  of  the  seventeen  townships) 
and  had  been  submitted  according  to  the  provision  of  the 
act  of  4th  April  1799,  commonly  called  the  compensation 
act,  but  also  of  other  land  lying  out  of  the  seventeen  town- 
ships to  which  no  title  was  derived  from  the  Commonwealth, 
or  from  the  late  proprietaries  of  Pennsylvania,  before  the 
4th  of  July  \  776.  There  was  no  evidence  of  the  execution 
of  this  deed,  except  the  acknowledgment  of  the  grantor  be 
fore  a  justice  of  the  peace  of  Luzerne  county,  so  that  the 
question  is  whether  the  acknowledgment  is  valid. 

In  order  to  come  to  a  true  understanding  of  the  act  on  which 
this  case  turns,  it  will  be  proper  to  state  briefly  the  occasion 
of  making  it.  The  peace  of  the  Commonwealth  had  been  long 
disturbed  by  the  conduct  of  a  number  of  persons,  who  seated 
themselves  on  lands  in  the  north  eastern  parts  of  the  state, 
under  a  title  not  derived  from  the  Commonwealth,  or  the 
late  proprietaries  of  Pennsylvania.  Various  lav/s  have  been 
from  time  to  time  made  to  remedy  this  evil  without  suc- 
cess. While  the  legislature  wished  to  secure  the  rights  of 
those  who  derived  title  under  the  Commonwealth,  it  ap- 
pears to  have  been  their  anxious  desire  to  shew  as  much 
lenity  as  possible  to  a  body  of  men,  many  of  whom  might 
have  been  deceived  as  to  their  own  title,  and  many  of  whom 
(or  their  fathers)  had  shed  their  blood  in  defence  of  the 
country  in  the  war  of  the  revolution.  In  order  to  effect  both 
these  objects,  the  compensation  act  was  passed,  holding  out 
inducements  to  the  Pennsylvania  claimants  to  relinquish 
their  titles  to  the  Commonwealth,  and  to  the  Connecticut 
settlers  to  purchase  from  the  Commonwealth,  the  lands  thus 
relinquished.  The  description  of  settlers  intended  to  be  fa- 
voured was  confined  to  the  seventeen  townships,  which  had 
been  in  great  part  occupied,  while  the  legal  controversy  be- 
tween the  states  of  Pennsylvania  and  Connecticut  was  yet 
undecided.  The  act  which  we  are  now  more  particularly 


OF  PENNSYLVANIA. 

to  consider,  bears  date  the  6th  of  April  1802,  and  its  mani- 
fest object  appears  to  have  been  to  continue  the  kindness" 
which  had  been  extended  to  the  seventeen  townships,  but 
to  cut  up  by  the  roots  the  title  of  Connecticut  in  all  other 
parts.  By  the  first  section,  no  conveyanee  to  be  made  of  any 
land  in  the  counties  of  Luzerne,  Lycoming,  and  Wayne,  shall 
be  effectual  to  pass  any  estate  or  right  legal  or  equitable, 
unless  the  title  to  the  land  in  such  conveyance  mentioned  is 
derived  from  the  state,  or  the  late  proprietaries  thereof  be- 
fore the  4th  of  July  1776,  and  unless  such  conveyance 
shall  expressly  refer  to  and  recite  the  substance  of  the  war- 
rant, survey,  patent  or  title,  under  which  the  same  is  de- 
rived ;  and  if  any  judge  or  justice  shall  take  an  acknowledg- 
ment or  proof  of,  or  any  recorder  shall  record,  any  deed 
which  shall  not  have  betn  derived  as  aforesaid,  he  shall 
forfeit  for  every  offenct  2O0  dollars;  and  such  acknowledg- 
ment and  recording  shall  be  void  and  of  no  effect,  and  such 
recorder  shall  forfeit  his  office.  The  second  section  prohibits 
any  person  interested  in  the  Connecticut  title  to  sit  as  a  judge 
or  serve  as  a  juryman  in  any  cause,  civil  or  criminal,  in 
which  that  title  may  be  brought  into  question,  and  prohibits 
all  sheriffs  to  summon  any  person  interested  in  the  said 
title>  as  a  juryman,  &c.  But  the  third  section  provides  that 
"  none  of  the  penalties  or  disabilities  created  by  the  said 
uact,  except  so  far  as  relates  to  judges,  sheriffs  or  jurors, 
"  shall  relate  to  land  or  the  claimants  of  land  within  the  se- 
"  venteen  townships  of  Luzerne  county,  or  any  of  them,  so 
"  far  as  concerns  any  act  of  theirs  concerning  lands  within 
"the  said  townships,  which  have  been  or  may  hereafter  be 
*'  duly  submitted  according  to  law,  under  the  provisions  of 
"  an  act  of  assembly  passed  on  the  4th  of  April,  1 799,  &c." 

The  operation  of  the  third  section  is  this.  The  restriction 
in  the  first  section,  with  respect  to  the  conveyance  of  titles 
not  derived  from  the  commonwealth,  has  no  effect  on  lands 
within  the  seventeen  townships,  which  have  been  or  may  be 
submitted  under  the  compensation  act,  but  the  prohibition 
in  the  second  section  to  sit  as  a  judge  or  serve  as  a  jury- 
man, or  to  return  as  jurymen,  &c.  remains  in  full  force  even 
as  to  persons  within  the  seventeen  towns.  There  can  be  no 
doubt  then  that  the  conveyance  of  that  part  of  the  land  in 
dispute,  which  lies  within  the  seventeen  townships,  if  it  had 

VOL.  VI.  H 


57 


1813. 


IRISH 
et  al. 

v. 
Soovn.. 


58 


CASES  IN  THE  SUPREME  COURT 


1813. 


IRISH 
et  al. 

v. 
SCOVIL. 


not  been  connected  with  other  prohibited  land,  would  have 
"been  effectual,  and  the  deed  of  conveyance  might  have  been 
legally  acknowledged  and  recorded.  Neither  have  I  any 
doubt  but  that  the  estate  of  the  grantor  in  the  land  within 
the  seventeen  townships,  pass  by  the  deed  in  question, 
although  other  prohibited  lands  are  contained  in  the  same 
deed.  That  the  land  within  the  seventeen  townships  should 
pass,  is  agreeable  to  the  third  section  and  not  at  variance 
with  any  part  of  the  act.  But  what  shall  we  say  to  the  ac- 
knowledgment of  this  deed  ?  The  acknowledgment  is  a  step 
preparatory  to  recording.  If  it  may  be  acknowledged,  so 
may  it  be  recorded.  But  it  can  neither  be  acknowledged  nor 
recorded  in  part.  They  are  acts  indivisible,  and  must  be 
good  or  bad  in  toto.  It  is  no  answer  to  say  that  the  record- 
ing may  be  good  so  far  as  respects  the  lands  in  the  seven- 
teen towns,  and  void  as  to  the  residue.  One  object  of  the 
law  was  to  prevent  the  entry  into  the  record  books  of  any 
writing  purporting  to  be  a  conveyance  of  prohibited  lands ; 
and  this  object  may  be  completely  frustrated,  if  such  con- 
veyances may  be  placed  on  record,  by  joining  in  the  same 
deed  a  conveyance  of  other  lands.  Where  prohibited  lands 
are  inserted  in  a  conveyance,  the  act  declares  the  acknow- 
ledgment to  be  void ;  how  then  can  we  say  that  it  is  in  any 
respect  good  ?  If  it  be  said,  that  this  is  a  hardship,  it  must 
be  acknowledged  to  be  brought  on  by  the  negligence  of  the 
grantee,  who  ought  not  to  have  accepted  of  such  a  convey- 
ance. It  was  very  much  my  wish  to  have  supported  this 
acknowledgment,  if  it  could  have  been  done  without  violat- 
ing the  act  of  assembly  ;  because  the  costs  in  this  action  are 
enormous,  and  the  deed  may  be  given  in  evidence  when  the 
cause  comes  to  be  tried  again  in  a  new  ejectment,  by  pro- 
ducing the  subscribing  witnesses.  But  I  am  constrained  to 
consider  the  acknowledgment  as  altogether  void,  and  that 
being  the  only  evidence  offered  of  the  execution  of  the 
deed,  the  Court  of  Common  Pleas  were  right  in  reject- 
ing it. 

The  plaintiff  in  error  has  brought  forward  another  excep- 
tion, that  the  judgment  is  erroneous,  because  the  statement 
of  the  plaintiff's  claim  makes  no  mention  of  Samuel  Need- 
hum,  one  of  the  defendants.  But  it  does  not  appear  to  me 
that  there  is  much  weighj  in  this  exception.  The  act  of  as- 


OF  PENNSYLVANIA. 


59 


6b     t>a 

6s i 203 

Iw225 

2w336 

2w337 

3w227 

4wl52 

4ws  79 

4ws  82 

6ws356 

14      62 

27    335 

32    305 

63      38 

66     260 

38 


sembly  directs  that  the  plaintiff  shall  file  a  statement  of  his 
claim,  on  or  before  the  first  day  of  the  term  to  which  the 
action  was  brought.  It  was  done  in  this  case  before  the 
term,  and  done  properly,  for  at  that  time  there  was  no  de- 
fendant but  Irish.  But  it  is  also  directed  bylaw,  that  if  there 
are  any  other  persons  found  in  possession,  the  sheriff  shall 
summon  them,  and  they  shall  be  also  made  defendants. 
Needham  was  found  on  the  land,  summoned  by  the  sheriff, 
and  entered  as  one  of  the  defendants.  He  appeared  by  his 
attorney  and  joined  the  other  defendant  in  the  plea  of  not 
guilty.  The  act  has  been  literally  complied  with  by  the 
statement  which  was  filed.  Whether  more  was  necessary,  I 
will  not  say,  because  from  what  appears  on  the  record,  the 
Court  of  Common  Pleas  would  have  been  authorized  to  per- 
mit an  amendment  of  the  statement  by  inserting  Need/iam's 
name  in  it  at  any  time,  even  after  verdict  and  judgment ; 
and  if  so,  this  Court  may  consider  such  amendment  as  hav- 
ing been  made.  My  opinion  therefore  is  that  the  judgment 
should  be  affirmed. 

YEATES  J.  was  absent  in  consequence  of  sickness. 

BRACKENRIDCE  J.  concurred  with  the  Chief  Justice. 

Judgment  affirmed. 


1813. 


IRISH 
et  al. 

v. 
SCOVIL. 


PS  ft. 


CAUFMAN  against  The   Presbyterian  Congregation 
of  Cedar  Spring. 
IN  ERROR. 


Swibwy, 
Wednesday, 
June  9. 

235  XT'  RROR  to  the  Common  Pleas  of  Mifflin  county.  It  If  a  tenant  for 
J— *  was  an  ejectment  by  the  Presbyterian  Congregation  of Averse titt^witll- 
Cedar  Sprint?  against  Caufman^  for  200  acres  of  land,  as  to  out  the  cons.ellt 

ofthereversioner, 

his  children  and  all  persons  who  come  in  under  him  or  them,  are  estopped  from  controverting  the 
r  eversioner's  right  to  possession,  in  the  same  manner  as  tenant  for  years  or  his  assignee  would  be. 

Where  boundary  is  the  subject  in  question,  what  has  been  said  in  relation  to  it  by  a  person  now 
deceased  is  evidence. 

A  written  agreement  was  placed  by  both  the  partiesin  the  hands  of  a  common  friend,  who  upon 
his  removal  from  the  scene  of  the  transaction  placed  it  with  his  father,  who  died.  After  proof  of 
these  facts,  a  witness  swore  that  after  the  father's  death,  he  together  with  the  son-in-law  of  the  fa- 
ther to  whom  all  hi*  papers  came,  made  diligent  search  among  the  father's  papers,  but  could  not 
find  the  writing.  Held,  that  this  was  sufficient  proof  of  the  loss,  to  lay  a  ground  for  one  of  the  par- 
ties to  prove  the  contents,  without  the  oath  ot  the  son-in-law  himself  as  to  the  search  and  not  finding- 

Upon  adescriptivc  location,  the  deputy  surveyor  surveyed  more  than  the  usual  excess,  and  with- 
put  the  knowledge  of  the  owner,  cut  off  a  part  of  the  survey  containing  the  best  lands,  and  answer- 
ing most  accurately  to  the  description,  for  which  another  person  at  the  deputy's  instance  entered 
a  location,  and  got  a  return  for  himself-  The  owner  of  the  first  location  not  being  informed  ol  the 
circumstance,  entered  upon  the  disputed  part,  and  improved  it.  Held,  that  the  return  of  survey  did 
not  prejudice  the  oldest  proprietor,  nor  bent  Jit  the  youngest ;  and  that  the  oldest  had  title. 


60 


CASES  IN  THE  SUPREME  COURT 


1813. 


CAUFMAN 

v. 

CONGREGA- 
TION OF 
CEDAR 
SPRING. 


99  acres  T77  of  which  he  took  defence,  under  the  circum- 
stances dtiailed  in  the  opinions  of  this  Court.  The  case  was 
here  argued  at  the  last  June  Term,  upon  exceptions  to  the 
opinion  of  the  Court  below  in  admitting  testimony,  and  in 
their  charge  to  the  jury,  all  of  which  distinctly  appear  here- 
after. 

Huston,  for  plaintiff  in  error. 
Watts,  contra. 

TILOHMAN  C.  J.  The  Presbyterian  Congregation  of 
Cedar  Spring,  were  plaintiffs  below,  and  obtained  a  verdict 
and  judgment.  In  the  course  of  the  trial  exceptions  were 
taken  to  the  plaintiffs'  evidence,  and  to  the  charge  of  the 
Court.  It  will  be  necessary  to  state  the  evidence,  in  order 
to  understand  the  points  in  controversy.  So  early  as  the 
year  1763,  the  plaintiffs  began  to  build  a  church  on  that 
part  of  the  land  now  claimed  by  them,  which  is  not  in  dis- 
pute. The  settlement  having  been  broken  up  by  the  Indian 
war,  the  building  of  the  church  was  suspended  and  not  re- 
sumed till  the  year  1767,  when  it  being  found  that  the  old 
logs  were  rotten  they  were  rejected,  and  a  new  church  built 
within  about  four  rods  of  the  site  of  the  old  foundation.  On 
the  30th  of  March  1767,  a  location  was  entered  in  the  land 
office  "for  200  acres  adjoining  Thomas  Baxton,  Robert 
"  Neilson  and  John  Wilkes,  '  in  the  names  of  James  Patter- 
"  son  and  James  Purdy"  in  trust  for  a  Presbyterian  Meet' 
*' ing  house  and  grave  yard"  On  these  locations  the  quan- 
tity of  332  dcres  81  perches  was  surveyed  by  James  Wilson, 
an  assistant  ot  William.  Maclay,  deputy  surveyor.  When 
Maclay  was  informed  of  th«  quantity,  he  said  it  was  more 
than  he  could  return ;  and  therefore  told  Isaac  Calhoun, 
under  whom  the  defendant  claims,  that  if  he  would  enter  a 
location  for  100  acres,  he  might  take  up  part  of  the  land, 
which  Calhoun  accordingly  did;  in  consequence  of  which 
Maclay  cut  up  the  land  into  two  surveys,  one  of  which  con- 
taining 232  acres  18  perches  he  returned  for  the  congrega- 
tion, and  the  other  containing  99  acres  123  perches  for 
Calhoun.  The  part  returned  for  Calhoun  is  much  the  best  in 
quality,  and  answers  best  to  the  description  of  the  plaintiffs* 
location*  It  does  not  appear  that  the  congregation  were  in- 


OF  PENNSYLVANIA.  61 

formed  of  the  manner  in  which  these  surveys  were  returned ;        1813. 
on  the  contrary  thejr  took  and  always  retained  possession  of    CAUFMAN 
the  disputed  tract,  and  about  the  year  1 774  or  1 775,  built  a  v. 

parsonage  house  on  it,  which  was  first  occupied  by  their  CONGREGA- 
minister  Mr.  Kennedy*  About  the  year  1779,  Kennedy  ^°^0^ 
was  succeeded  by  the  Rev.  Hugh  Magill,  who  was  placed  SPRING. 
on  the  land  under  a  written  agreement  with  the  congrega- 
tion, by  virtue  of  which  he  was  permitted  to  clear  woodland 
and  make  improvements,  for  which  he  was  to  receive  a  com- 
pensation in  case  they  exceeded  the  rent.  Magill  while  thus 
in  possession,  purchased  Calhourfs  title  for  4O/.  a  sum  far 
below  its  value,  supposing  the  title  to  be  good.  This  was 
about  the  year  1 786.  Before  the  purchase  was  made,  Magill 
informed  the  congregation  of  Calhoun's  claim,  and  told  them, 
that  if  they  did  not  purchase,  he  would.  It  does  not  appear 
that  the  congregation  took  any  steps  towards  purchasing 
themselves,  but  the  purchase  of  Mag-ill  produced  discontent, 
in  consequence  of  which  the  matter  was  referred  to  the 
presbytery  in  the  year  1 80O,  when  it  was  finally  agreed  that 
Magill  should  hold  the  possession  of  the  church  land  dur- 
ing his  life  and  receive  an  annuity ;  but  he  was  no  longer 
to  remain  pastor  of  the  church.  He  died  in  possession  in 
the  year  1805,  immediately  after  which  his  children  re- 
ceived notice  from  the  plaintiffs  to  quit  the  premises.  Dur- 
ing their  father's  life,  his  sons  William  and  Robert  obtained 
a  conveyence  from  James  Purdy  the  surviving  trustee  of 
the  church,  for  the  sum  of  55  dollars,  and  on  the  1 7th  March 
1807,  they  obtained  a  patent  from  the  Commonwealth  in 
trust  for  all  the  children  of  their  father.  On  the  5th  May 
1807,  all  the  children  joined  in  a  deed  to  the  defendant 
with  general  warranty,  in  consideration  of  the  sum  of  5OO/. 
secured  to  be  paid  to  them.  As  soon  as  the  defendant  took 
possession,  the  plaintiffs  brought  this  ejectment  against  him. 
The  charge  of  the  president  of  the  Court  of  Common  Pleas 
was  in  favour  of  the  plaintiffs ;  but  at  the  same  time  he  told 
the  jury,  that  if  they  were  satisfied  that  Magill  purchased 
from  Calhoun  for  his  own  use,  with  the  consent  of  the  con- 
gregation, in  that  case  the  defendant  would  not  be  estopped 
from  controverting  the  plaintiffs'  title,  although  he  came  in 
under  their  tenant.  He  likewise  told  them  that  if  they  were 
satisfied  that  the  congregation  were  informed  of  the  defend- 


62  CASES  IN  THE  SUPREME  COURT 

1813.  ant's  intention  to  purchase,   and  gave  no  notice  of  their 

CAUFMAN  c^aimi  tnc  verdict  ought  to  be  in  favour  of  the  defendant. 

v.  I  have  been  thus  particular  in  stating  the  evidence,  be- 

CONGREGA-  cause  there  is  very  little  difficulty  when  the  matter  is  fully 

TION  OF      understood.     We  must  now  take  for  granted  that  the  con- 
LEDAII  .  „.      .,„      °  ,       ,  . 

SPRING,      gregation  gave  no  assent  to  Magills  purchase  for  his  own 

use,  and  that  they  were  not  informed  of  the  defendant's  in- 
tention to  purchase.  The  case  then  stands  simply  thus. 
The  defendant  purchased  from  the  children  of  Mag-ill,  who 
came  in  under  their  father,  who  was  the  tenant  of  the  plain- 
tiffs. Under  such  circumstances  shall  not  the  defendant  be 
obliged  to  restore  the  possession  to  the  plaintiffs  ?  Certainly 
he  shall.  Neither  the  tenant,  nor  one  who  claims  under  him, 
shall  withhold  from  the  landlord  that  possession,  which  by 
the  agreement  of  the  parties,  was  to  be  given  up  at  the  end 
of  the  term  j  and  whether  the  term  was  for  life  or  for  years 
there  is  no  difference.  This  principle  is  so  familiar  that  au- 
thorities need  hardly  be  cited.  I  will  refer,  however,  to  the 
case  of  Galloway  v.  Ogle,  in  this  Court,  2  Binn.  468,  and 
Jackson  v.  Hardie,  in  the  Supreme  Court  of  New  Tork,  4 
Johns.  210,  211.  It  is  not  proved  expressly  that  the  de- 
fendant knew  whence  the  persons  from  whom  he  purchased 
derived  their  possession,  but  that  is  immaterial;  k  was  his 
business  to  know  it,  and  the  circumstance  of  his  taking  a 
general  warranty  renders  it  probable  that  he  did  know  it,  or 
at  least  that  he  knew  the  title  not  to  be  without  suspicion. 
I  have  hitherto  considered  the  case  upon  the  facts  which  I 
have  stated.  But  on  the  trial  of  the  cause  the  defendant 
objected  to  the  admission  of  some  of  those  facts  in  evidence. 
The  validity  of  those  objections  is  now  to  be  examined.  In 
the  first  place  it  was  contended  that  parol  evidence  of  what 
was  said  by  Wilson  the  assistant  of  Maclay  ought  not  to 
have  been  admitted,  because  the  official  return  of  survey 
was  the  best  evidence  of  the  survey.  But  the  evidence  of 
Wilson's  words  was  not  let  in  with  a  view  of  contradicting 
the  return  of  survey ;  it  was  only  to  shew  what  were  the 
boundaries  of  the  plaintiffs'  claim.  It  will  be  recollected 
that  Wilson  is  dead,  otherwise  nothing  less  than  his  own 
oath  could  have  been  received.  Where  boundary  is  the  sub- 
ject, what  has  been  said  by  a  deceased  person  is  received  as 
evidence.  It  forms  an  exception  to  the  general  rule.  It  was 


OF  PENNSYLVANIA.  63 

necessary  for  the  plaintiffs  to  shew  their  possession  of  the       1813. 
lands  returned  for  Calhoun ;  because  had  they   acquiesced    CAUFMAN 
in  that  return,  and  suffered  Calhoun  to  take  possession  and  v. 

keep  it  for  any   considerable  time,  they  would  have  been  CONGREOA- 

TTOTtf  OV 

bound  by  it.  But  having  never  acquiesced,  they  had  a  right  Q  AR 
to  contend  that  William  Maclay  had  done  the  wrong,  even  SPRING. 
supposing  that  not  more  than  22O  acres  could  properly  have 
been  returned  upon  a  location  for  200  acres.  He  ought  not 
to  have  deprived  them  of  the  most  valuable  portion  of  the 
land,  especially  as  it  corresponded  best  with  the  plaintiffs' 
location.  It  was  impossible  for  the  plaintiffs  to  shew  the  ex- 
tent of  their  possession,  without  shewing  the  lines  run  by 
Wilson.  Those  lines  were  the  plaintiffs'  boundaries,  at  least 
such  was  their  claim.  It  appears  to  me  therefore  that  what 
was  said  by  Wilson,  came  within  the  exception  which  admits 
the  words  of  a  deceased  person  to  be  given  in  evidence  in 
a  matter  of  boundary. 

The  next  exception  is  to  the  admission  of  parol  evidence 
to  prove  the  substance  of  the  written  agreement  between 
the  congregation  and  Maglll.  To  make  way  for  such  evi- 
dence it  must  be  proved,  first,  that  the  agreement  once  ex- 
isted ;  second,  that  it  has  been  lost  or  destroyed,  which  may 
be  done  by  circumstantial  evidence.    There  was  good  proof 
of  the  execution  and  existence  of  the  writing,  and  of  its 
being  deposited  in  the  hands  of  Joseph  M^Clellan,  for  safe 
keeping,  so  that  he  was  to   be  considered  as  a  trustee  for 
both  parties.     On  Joseph   M*-Clellarfs  removal  to  Butler 
county,  he  placed  the  writing  in  the  hands  of  his  father  John 
M^Clellan.    The  father  then  came  into  the  place  of  the  son, 
and  held  the  deposit  for  the  benefit  of  both  parties.  John 
M'-Clellan  died,  and  the  plaintiffs  had  recourse  to  his  son- 
in-law  James  Sanderson,  into  whose   hands  all  his  papers 
came.  Sanderson  with   James  Knox  made  diligent  search 
among  the  papers  of  John  M'Clellan,  but  the  writing  was 
not  to  be  found.   This  is  proved  by  Knox.  The  defendant's 
counsel  insisted  that  all  this  was  insufficient,  because  San- 
derson was  not  examined  on  oath.    The  Court  of  Common 
Pleas  were  satisfied  that  enough  had  been   done,  and  ad- 
mitted the  parol  evidence.     If  this  writing  had  been  in  the 
custody   of  the   plaintiffs  themselves,  it   might  have   been 
reasonable  to  hold  them  to  very  strict  proof  of  its  loss  or 


64 


CASES  IN  THE  SUPREME  COURT 


1813. 


CAUFMAN 

v. 

CONGREGA- 
TION OF 
CEDAR 
SPRING. 


destruction.  But  considering  that  it  was  no  more  in  their 
hands  than  in  those  of  the  opposite  party,  I  am  not  disposed 
to  differ  from  the  opinion  of  the  Court  of  Common  Pleas. 
Proof  was  made  of  a  search  by  Sanderson;  and  as  it  was  as 
well  known  to  the  defendant  as  the  plaintiffs  that  Sanderson 
had  possession  of  his  father-in-law's  papers,  by  depositions 
taken  in  this  cause  before  the  trial,  the  defendant,  if  he  had 
suspected  collusion  or  negligence  in  the  search,  might  have 
examined  Sanderson  on  oath.  Having  thus  considered  all 
the  points  made  by  the  plaintiff  in  error,  I  have  only  to  add 
that  upon  the  whole  I  am  for  affirming  the  judgment. 

YEATES  J.  The  first  error  assigned  by  the  plaintiff  in  this 
case  is,  that  the  declarations  of  James  Wilson,  an  assistant 
of  William  Maclay ^  deputy  surveyor  of  the  district,  were 
received  in  evidence  to  establish  a  survey  of  the  lands  in 
question  for  the  congregation,  whereas  in  fact  the  lands  were 
surveyed  and  returned  on  the  application  of  Andrew  Cal- 
houn.  under  whom  Caufman  claims.  This  objection  is  found- 

•/  *> 

ed  on  a  misapprehension  of  the  fact.  The  making  of  the 
survey  was  ascertained  by  other  proof  written  as  well  as 
parol ;  and  it  also  appeared,  that  Calhoun  was  informed  of 
this  survey  prior  to  his  entering  his  location.  But  the  de- 
clarations of  Wilson  were  received  for  the  sole  purpose  of 
establishing  the  boundaries  of  the  claim,  and  the  extent  of 
the  possession  of  the  congregation.  The  decision  in  Mont- 
gomery's Lessee  v.  Dickey,  in  Franklin  county,  is  a  strong 
case  in  point  upon  this  subject. 

2.  It  has  been  contended,  that  the  contents  of  a  written 
agreement  between  the  congregation  and  the  reverend  Hugh 
Magill,  their  pastor,  were  shewn  by  parol,  without  laying 
proper  grounds  for  such  testimony  in  the  first  instance.  How 
stands  the  fact?  In  1778  or  1779  Mr.  Magill  succeeded 
Mr.  Kennedy  as  minister  of  the  congregation,  and  was  put 
into  possession  of  a  house  previously  erected  by  the  con- 
gregation upon  what  was  called  the  glebe  (being  the  pre- 
mises in  question)  and  occupied  by  Kennedy.  An  agreement 
was  entered  into  between  the  parties,  and  deposited  in  the 
hands  of  Joseph  M'-Clellan  for  safe  keeping.  Upon  his  re- 
moval to  Butler  county,  he  delivered  this  paper  to  his  father 
John  M^Clellan ;  and  on  his  death  all  his  papers  came  into 


OF  PENNSYLVANIA.  65 

the  hands  of  James  Sanderson,  his  son-in-law,  who  together        1813. 
with  James  Knoxmade  a  diligent  and  strict  search  for  the 


original   agreement,   but  their  endeavours   were   fruitless.  v. 

These   facts  were    amply    verified  by  the    depositions    of  CONGREGA- 

M^Clellan  and  Knox,  taken  under  a  rule  of  Court  ;  and  the      T,ION  OF 

Court  being  fully  satisfied  of  the  former  existence  and  loss      SPRING. 

of  this  agreement,  and  that  due  pains  had  been  used  to  ob- 

tain it,  permitted  its  contents  to  be  shewn  in  evidence  by 

parol  proof.  It  was  objected  that  Sanderson  might  have  re- 

tained the  paper  in  his  possession,  and  have  subtracted  it 

from  the  other  papers  of  his  father-in-law  when  the  search 

was  made,  and  that  he  also   should  have  been  examined 

upon  oath.    This  might  have  been  a  prudential  measure  if 

pursued,  but  I  can  see  no  absolute  necessity  for  it.    The 

fact  was  sworn  to,  that  all  the  papers  of  John  M'Clellan 

deceased,  were  examined  carefully,  and  that  the  agreement 

could  not  be  found.     There  was  no  reasonable  ground  to 

suppose  that  Sanderson  would  withdraw  it,  nor  could  he 

have  any  motive  for  so  doing.     He  united  his  exertions  to 

find  it;  and  if  the  Court  of  Common  Pleas  were  convinced 

that  due  diligence  had  been  used  to  obtain  it,  they  were  jus- 

tified in  letting  in  oral  testimony  of  its  contents. 

3.  It  has  likewise  been  urged  that  the  judges  below  erred 
in  charging  the  jury,  that  the  congregation  were  entitled  to 
recover  the  possession.  It  appears  to  me  to  be  a  strong  case 
on  their  part.  The  congregation  began  to  erect  a  church  a 
few  perches  from  the  tract  of  land  in  question  in  1763.  The 
Indian  war  came  on,  and  the  inhabitants  fled  but  returned 
in  1767.  On  the  3Oth  March  1767,  James  Patterson  and 
James  Purdy  took  out  a  location  for  20O  acres  of  land  ad- 
joining Thomas  Baxton,  Robert  Nelson,  and  John  Wilkesy 
in  trust  for  a  presbyterian  meeting  house  and  grave  yard. 
It  called  with  precision  for  the  tract  in  controversy,  and 
could  be  laid  on  no  other  spot.  In  the  same  year  they  built 
a  new  church,  and  James  Wilson  the  assistant  of  William' 
Maclay  deputy  surveyor,  having  surveyed  332  acres  81 
perches  on  the  meeting  house  location,  Maclay  under  the 
pretence  that  he  could  not  return  so  large  a  quantity  thereon, 
returned  under  a  latter  location  of  Andrew  Calhoun,  dated 
8th  January  1768,  99  acres  123  perches  without  the  pri- 
VOL.  VI.  I 


66  CASES  IN  THE  SUPREME  COURT 

1813.       vity  or  consent  of  the  congregation.     By  these  means  the 
CACFMAN    congregation  would  be  stripped  of  the  lands  which  the  trus- 
v.  tees  had  specially  applied  for,  and  in  lieu  thereof,  would 

CONGREGA-  obtain  lands  which  ?were  proved  on  the  trial,  to  be  of  in- 
TCK  IAK  ^€Tlor  quality,  and  considered  relatively  were  not  deemed 
SPUING.  as  exceeding  one  fourth  part  in  point  of  value.  This  con- 
duct was  most  highly  unjustifiable  in  every  view  of  the 
case.  It  is  not  competent  to  the  proprietary  agent  to  vary 
the  contract  of  the  party  without  their  consent.  In  1774 
or  1775,  the  congregation  built  a  parsonage  house  on  the 
premises  in  controversy,  north  easterly  of  their  church,  with- 
out any  claim  on  the  part  of  Calhoun,  and  put  their  minister 
Mr.  Kennedy  in  possession  thereof,  who  occupied  the  same 
until  1779,  when  he  was  succeeded  by  the  Rev.  Hugh 
Ma^ill,  who  was  likewise  put  into  possession  by  the  con- 
gregation, under  a  written  agreement  which  is  since  lost, 
that  he  should  reside  therein  free  of  rent,  and  should  have 
liberty  to  make  improvements  on  the  land,  for  which  he 
was  to  receive  compensation  in  case  they  exceeded  the 
value  of  the  rent.  Thus  living  under  his  flock  and  super- 
intending their  spiritual  concerns,  he  buys  in  the  claim  of 
Calhoun  for  40/.  in  1786,  which,  if  his  pretensions  were 
well  founded,  would  be  worth  at  least  300/.  The  congrega- 
tion are  justly  displeased  with  him,  but  he  is  suffered  to 
continue  on  the  land.  In  1800  the  matter  is  heard  in  pres- 
bytery j  and  at  length  it  was  mutually  agreed  that  Magill 
should  hold  possession  of  the  glebe  during  his  natural  life 
and  receive  an  annuity.  He  gave  up  the  sacramental  cups 
&c.  and  separated  from  his  flock  as  their  pastor.  All  this 
seems  incompatible  with  his  pretensions  under  the  adverse 
title  of  Calhoun.  Magill  died  on  the  land  in  1805,  and  im- 
mediately afterwards,  notice  was  given  to  his  children  to 
quit  the  premises.  Previously  thereto,  on  the  1st  of  Febru- 
ary 18O2,  William  Magill  and  Robert  Magill  two  of  the 
sons,  fraudulently  obtained  a  conveyance  from  James 
Purdy  the  surviving  trustee  of  the  congregation,  in  consi- 
deration of  55  dollars;  and  after  their  father's  death,  on  the 
17th  of  March  1 707,  obtained  a  patent  from  the  Common- 
wealth in  trust  for  all  the  heirs,  and  all  the  children  join  in 
a  conveyance  to  John  Caufman  on  the  5th  May  18O7, 
with  covenant  of  general  warranty.  Immediately  after 


OF  PENNSYLVANIA.  67 

Caufrnan  received  possession,    an  ejectment  was  brought       1813. 
against  him.  CAUFMAN 

Upon  this  statement  of  the  facts,  I  can  see  little  difficulty  v. 

in  deciding  in  whom  the  title  is ;  or  as  it  is  frequently  ex-  CONGRBGA- 
pressed,  who  had  the  best  right  to  the  patent.  The  question  ™otr  OF 
whether  the  congregation  were  guilty  of  any  constructive  SPRING. 
fraud  in  not  giving  notice  to  Caufrnan  previous  to  his  pur- 
chase, was  fairly  submitted  to  the  jury,  and  they  have  deci- 
ded against  it.  Their  possession  by  their  tenants  operated 
as  full  notice  of  their  claim.  They  had  the  earliest  location, 
particularly  describing  the  premises,  which  could  be  satis- 
fied no  where  else,  which  was  followed  up  by  an  early  sur- 
vey, and  though  not  properly  returned,  the  actual  survey 
formed  a  complete  contract.  If  the  surveyor  general  would 
not  receive  the  survey  on  the  ground  of  the  large  quantity  of 
land  contained  therein,  the  surplus  thrown  out  should  not 
have  been  in  such  part  as  was  specially  called  for  by  the  ap- 
plication, but  on  the  other  side  of  the  tract  where  the  lands 
were  of  inferior  value,  and  notice  given  thereof  to  the  trus- 
tees of  the  church.  The  conduct  of  the  deputy  herein,  could 
not  affect  the  interests  of  the  congregation,  unless  they  ac- 
quiesced therein  after  notice  of  the  fact,  of  which  there  was 
no  evidence.  Hugh  Mag-ill  came  into  possession  under  them 
as  their  tenant,  and  neither  in  a  legal  nor  moral  senae  could 
withhold  the  possession  from  them  against  the  plain  tenor 
of  their  contract.  His  children  came  in  under  him,  and  also 
their  vendee,  and  they  all  stood  in  the  same  relative  situa- 
tion towards  the  original  landlords.  The  plain  consequence 
is,  that  Caufrnan  must  resort  to  his  covenant  of  general 
warranty  upon  his  eviction,  for  the  redress  of  the  injury  he 
has  sustained. 

I  am  of  opinion  that  the  judgment  of  the  Court  of  Com- 
mon Pleas  be  affirmed. 

BRACKENRIDGE  J.  having  been  prevented  by   sickness 
from  sitting  on  the  argument,  gave  no  opinion. 

Judgment  affirmed. 


CASES 

>    ;  f  i  sl'rJ  yrff  IIWI'M  n't  7 

IN   THfc 

yj:>Vf    tloOBgyfgJOO   v' 

SUPREME  COURT 

OF 

PENNSYLVANIA. 

*  ite  fd  mr  <L-i-?.">  •'!,••*  6f;-r  r'uirt'//  ,  "-' 


Western  District,  September  Term,  1813, 

1813.  THOMPSON    against  JOHNSTON. 


6b    68 
Iw  96 


Pitttburg,  m  ERROR. 

Saturday, 

September  ii.     _,  RRQR  to  the  Common  Pleas  of  Indiana  county,  to 

A  warrant,  sur-    I-j  <  '  T 

vey,  and  patent  JL-A  remove  the  record  of  an  ejectment  for  217  acres  and 
chased  *f  "he  PUr"  1 8  perches  of  land,  brought  by  Johnston  the  plaintiff  below 
Indians,  and  against  Thompson,  in  which  the  following  case  was  stated. 

•which  the  pro-  '          '  ° 

prietariea  did  notto  be  considered  in  the  nature  of  a  special  verdict. 

know  at  the  time 
of  granting,  10  be 
within  the  Jndian  fjffg  Of  plaintiff  belozv.  A  warrant  issued  by  the  Com- 

ImMiM,  pass  no  •'    *  *" 

right.  monwealth  of  Pennsylvania  to   Thomas   Johnston  for  20O 

acres  of  land  within  the  late  purchase,  dated  17th  May 
1785.  A  survey  of  217  acres  18  perches  and  allowance  was 
made  on  the  1 7th  of  July  1 785,  by  virtue  of  the  said  war- 
rant, by  James  Johnston  deputy  surveyor,  adjoining  the 
purchase  line.  Thomas  Johnston  the  warrantee  above  named, 
by  indenture  dated  3d  December  1798,  in  consideration  of 
natural  love  and  affection  and  of  one  dollar,  conveyed  the 
said  tract  of  land  to  James  Johnston  the  plaintiff  in  fee. 
The  defendant  is  in  possession  of  the  land  surveyed  as 
above.  The  said  defendant  and  a  certain  Alexander  Taylor 
searched  the  lines  of  said  tract  of  land  about  thirteen  years 
ago,  and  found  the  purchase  line  marked  differently  from 
other  lines  ;  and  that  the  diagram  made  by  Alexander  Taylor 
on  the  27th  of  December  1809,  by  virtue  of  an  order  of 
Court,  contains  a  true  representation  of  the  surveys  of 


CASES  IN  THE  SUPREME  COURT,  &c. 

plaintiff  and  defendant,  and  their  relative  situation,  and 
of  the  purchase  line  as  run  in  conformity  with  the  treaty " 
with  the  Indians  at  Fort  Stanwix  in  1768;  and  that  the 
land  now  claimed  by  plaintiff  lies  on  the  north  side  of  said 
line,  and  adjoining  thereto.  The  said  treaty  and  purchase 
from  the  Indians,  and  the  different  acts  of  assembly  relative 
thereto,  to  be  considered  as  part  of  the  case,  and  that  the 
purchase  line  was  run  and  marked  agreeably  to  the  acts  of 
assembly,  previous  to  making  the  plaintiff's  survey. 

Defendant's  title*  An  application  was  entered  on  the  23d 
of  July  1773,  for  30O  acres  in  the  county  of  Westmoreland^ 
in  the  name  of  Charles  Porter.  On  the  same  day  a  warrant 
was  issued  by  the  then  proprietaries  of  Pennsylvania  to 
Charles  Porter  for  300  acres  joining  Stephen  Porter  in 
Westmoreland.  On  the  14th  day  of  October  1773,  a  survey 
was  made  by  Joshua  Elder  deputy  surveyor,  by  virtue  of 
the  said  warrant,  containing  323  acres  and  allowance,  and 
which  survey  is  fairly  represented  in  the  diagram  made  as 
above  by  Alexander  Taylor.  Charles  Porter  by  indenture 
dated  the  8th  of  February  1775  in  consideration  of  five 
shillings  conveyed  the  said  tract  of  land  to  James  Cannon; 
and  the  then  proprietaries  on  the  18th  of  the  same  month, 
granted  their  patent  for  the  land  to  Cannon.  The  defendant 
settled  on  the  land  in  dispute  in  the  year  1796,  and  has 
cleared  eight  or  nine  acres.  The  purchase  line  runs  through 
the  tract  of  land  in  the  name  of  Charles  Porter  ;  and  the 
defendant  claims  the  tract  under  the  patent  to  Cannon  above 
mentioned.  The  purchase  line  above  stated  was  the  boundary 
line  between  Westmoreland  county  and  the  counties  thereto 
adjoining  on  the  north,  until  the  act  of  assembly,  passed  the 
30th  of  March  1803,  erecting  certain  parts  of  Northumber- 
land and  Lycoming  counties  into  a  separate  county  called 
Indiana;  the  same  for  a  certain  time  came  within  the  juris- 
diction of  Westmoreland,  and  is  now  Indiana  county,  and 
was  so  at  the  time  of  bringing  the  suit.  The  commission  to 
Joshua  Elder  contained  only  an  authority  to  survey  within 
the  purchase  of  1768*  The  survey  of  defendant  was  made, 
and  patent  granted  before  the  purchase  line  was  run  by  the 
commissioners.  And  if  upon  the  whole  the  opinion  of  the 
Court  shall  be  Sec. 


69 


1813. 


THOMPSON 

v. 
JOHNSTON. 


70 


CASES  IN  THE  SUPREME  COURT 


1813.  The  diagram  of  Taylor  is  not  material :  it  shewed  the 

THOMPSON  interference  of  the  tracts,  and  that  Porter* s    survey   was 

v.  upon  land  not  then  purchased  from  the  Indians. 
JOHNSTON. 

Forward  argued  for  the  plaintiff  in  error. 

yj'u  lo  eJ->t  3iM-i'&ib  yijj  iuu;  ,tui^'.'u\i. 

Ross  contra. 

TILGHMAN  C.  J.  James  Johnston  the  plaintiff  below, 
and  defendant  in  error,  claims  under  a  warrant  dated  17th 
May  1785,  on  which  a  survey  was  made  17th  July  1785. 
John  Thompson,  the  defendant  beloxv,  claims  under  a  war- 
rant dated  23d  July  1773,  on  which  a  survey  was  made 
14th  October  1773,  and  a  patent  issued  18th  February  1775. 
But  at  the  time  of  the  defendant's  warrant,  survey  and  pa- 
tent, the  land  had  not  been  purchased  by  the  late  proprie- 
taries of  the  Indians.  The  question  therefore  is,  whether 
any  right  to  land  so  unpurchased  passes  by  a  patent.  It  is 
a  principle  that  nothing  passes  by  a  deed,  where  the  grantor 
is  entirely  deceived  as  to  the  object  of  the  grant,  unless  such 
deception  be  without  any  fault  of  the  grantee,  and  on  a 
point  which  the  grantor  is  bound  to  know.  Considering  that 
the  surveyor  was  in  some  measure  the  agent  of  the  party 
who  took  out  the  warrant,  as  well  as  of  the  proprietaries, 
and  that  it  was  the  party  who  described  the  land  which  he 
wished  to  take  up,  I  do  not  think  that  a  survey  made  in  ex- 
press violation  of  the  rules  prescribed  for  the  conduct  of 
surveyors,  can  be  said  to  be  altogether  without  the  fault  of 
the  warrantee,  although  he  may  not  have  been  guilty  of  an 
intended  fraud  or  deception.  It  was  impossible  for  the  pro- 
prietaries to  be  present  at  the  execution  of  surveys.  They 
therefore  laid  down  general  rules  for  the  direction  of  sur- 
veyors, and  it  is  highly  reasonable  that  all  persons  applying 
for  lands,  should  be  bound  by  those  rules.  One  of  these  di- 
rections was,  to  survey  no  lands  beyond  the  bounds  of  the 
purchases  from  the  Indians ;  a  regulation  founded  not  enly 
in  good  policy,  but  in  strict  justice.  The  royal  charter  did 
indeed  convey  to  William  Penn  an  immediate  and  absolute 
estate  in  fee  in  the  province  of  Pennsylvania.  But  that  great 
and  good  man  did  not  conceive  that  he  had  a  title  in  con- 
science, until  he  had  obtained  the  consent  of  the  natives. 
Accordingly  he  established  it  as  a  principle,  which  was  fol- 


OF  PENNSYLVANIA. 

lowed  by  his  successors,  and  has  received  the  approbation 
of  all  mankind,  to  grant  no  lands  which  had  not  been  pre-~ 
viously  purchased  of  the  Indians.  In  this  he  was  supported 
by  the  legislature,  who  at  a  very  early  period  made  it  penal 
for  any  individual  to  settle  on  the  Indian  lands,  or  even  to 
make  a  purchase  from  them.  The  consequence  was  what 
might  be  expected.  The  Indians  entertained  a  lasting  sense 
of  gratitude  and  good  will  to  the  proprietaries  and  go- 
vernors of  Pennsylvania,  and  were  less  disposed  to  war  with 
that  province  than  with  others,  where  principles  less  equita- 
ble had  been  adopted.  If  the  proprietaries  had  been  inform- 
ed of  the  truth  of  the  matter,  we  may  be  morally  certain, 
that  the  patent  in  this  case  would  not  have  been  issued,  nor 
is  it  pretended  that  it  ought  to  have  been  issued.  But  it  is 
said  that  having  issued,  the  legal  estate  passed.  But  that  is 
begging  the  question ;  for  it  is  contended  on  the  other  side 
that  the  grant  was  void,  in  consequence  of  the  deception. 
We  are  not  without  authority  for  this  opinion  ;  for  it  was 
determined  before  the  revolution  in  the  case  of  The  Pro- 
prietaries v.  Samuel  Wallis,  that  the  patents  were  void  which 
were  issued  for  lands  in  the  proprietary  manors,  surveyed 
contrary  to  standing  instructions,  and  done  in  such  a  man- 
ner, that  the  secretary  and  surveyor  general  were  imposed 
on.  It  was  also  decided  at  Nisi  Prius  in  the  year  1796,  in  the 
case  of  Weiser  v.  Moody,  that  nothing  passed  by  a  patent 
for  lands  beyond  the  bounds  of  the  purchase,  unless  the  pro- 
prietaries or  their  superior  officers  were  acquainted  with 
the  true  situation  of  them.  It  may  be  asked,  what  in  such 
a  case  does  equity  require  ?  The  answer  is  plain.  When 
the  patentee  has  been  guilty  of  no  fraud,  he  should  either 
be  permitted  to  survey  an  equal  quantity  of  other  land,  or 
have  his  money  restored  to  him  with  interest.  But  equity- 
would  not  require  that  he  should  have  the  identical  land, 
illegally  surveyed  in  1773,  which  has  been  since  legally 
surveyed  and  sold  to  another  under  the  authority  of  the 
Commonwealth,  This  would  be  doing  wanton  injustice  to 
the  subsequent  purchaser.  In  the  present  instance  there  is 
no  allegation  of  fraud,  but  there  certainly  was  negligence  or 
carelessness  in  the  surveyor,  or  the  warrantee,  or  both.  The 
purchase  line  had  not  been  actually  run ;  it  was  therefore 
incumbent  on  the  surveyor  to  keep  at  such  a  distance  as 


71 


1813. 


THOMPSON 

c. 

JOHNSTON 


72  CASES  IN  THE  SUPREME  COURT 

1815.        should  be  clearly  within  it.     At  any  rate  the  survey  was  at 
THOMPSON   ^e  Per'*  °*  l^e  wan*antee.     This  is  the  light  in  which  the 
v.  subject  has  been  constantly  viewed  by  the  legislature.     In 

JOHNSTON,  the  act  for  opening  the  land  office,  subsequent  to  the  revolu- 
tion (9th  April  1781,  1  Smith's  Laws  532)  by  which  all 
imperfect  titles  derived  from  the  late  proprietaries  were 
confirmed,  there  is  an  express  exception  of  lands  not  within 
the  Indian  purchase  ;  and  in  the  year  1785,  petitions  for  con- 
firming titles  under  circumstances  similar  to  the  present 
were  rejected.  It  appears  to  me  therefore  that  the  title  of 
the  defendant  is  defective  ;  consequently  the  title  of  the 
plaintiff,  although  of  later  date,  stands  good.  I  am  of  opi- 
nion, that  the  judgment  of  the  Court  of  Common  Pleas  be 
affirmed. 

YEATES  J.  The  history  of  Pennsylvania  from  its  founda- 
tion as  a  colony,  furnishes  most  abundant  proof  of  the  fixed 
resolution  of  the  different  proprietaries  to  dispose  of  no 
lands  within  their  chartered  limits,  which  had  not  previously 
been  purchased  from  the  Indian  natives.  The  cultivation  of 
peace  with  the  Aborigines  was  a  measure  of  sound  policy ; 
and  combined  therewith  the  individual  interests  of  the  lords 
of  the  soil.  Their  solemn  engagements  not  to  sell  lands 
beyond  the  boundary  of  their  purchases  were  repeatedly 
recognized  in  different  conferences  with  the  Indians.  The 
usual  forms  of  warrants  issued  from  the  land  office  restricted 
the  surveys  to  be  made  thereon  within  the  Indian  purchases; 
and  the  deputy  surveyors  received  written  instructions  to 
execute  the  warrants  directed  to  them,  "according  to  the 
"  express  word  and  order  of  such  warrants,  and  not  other- 
'*  wise :"  and  it  is  obvious  that  they  had  no  authority  to 
enter  on  the  Indian  lands  to  make  their  surveys.  The  pur- 
chasing of  lands  from  the  natives,  or  settling  thereon,  was 
prohibited  by  positive  law. 

No  instance  can  be  shewn  wherein  the  proprietary  of- 
ficers have  received  an  application  for  lands  within  the 
Indian  boundary ;  and  we  are  bound  to  presume  that  if 
such  applications  had  been  made,  they  would  have  been  re- 
jected. It  appears  by  the  minutes  of  the  governor's  council, 
(Lib.  M.  151.)  that  on  the  18th  of  April  1752,  a  commis- 
sion and  license  issued  to  Andrew  Montour  to  settle  and 
reside  in  any  place  he  should  judge  convenient  and  central; 


OP  PENNSYLVANIA.  73 

to  preserve  the  lands  from  being  settled  by  others,  and  warn        1813. 
off  all  who  had  presumed  to  go  there,  and  to  report  the     THOMPSON 
names  of  such  as  had  settled  there,  that  they  might  be  pro-  v. 

secuted.  In  the  course  of  my  practice  at  the  bar,  two  cases    JOHNSTON. 
only  came  to  my  knowledge  of  ejectments  being  commenced 
on  surveys  made  out  of  the  Indian  purchases ;  but  the  plain* 
tiffs  never  ventured  to  bring  either  of  them  on  to  trial. 

It  appears  from  the  facts  agreed  on  in  this  case,  that  the 
survey  under  which  the  plaintiff  in  error  claims  the  lands 
in  dispute,  was  made  on  the  14th  of  October  1773,  above 
eighteen  months  prior  to  the  running  of  the  lines  of  the 
Indian  purchase,  made  at  Fort  Stanwix,  viz.  on  the  4th 
of  May  1775.  The  imaginary  line  therefore  between  the 
nearest  fork  of  the  west  branch  of  Susquehanna  and  Kit- 
tanning,  could  only  be  guessed  at.  But  if  the  owner  of  the 
Warrant  under  which  the  plaintiff  founds  his  pretensions, 
knew  at  the  time  that  the  survey  was  made  beyond  the 
purchase,  he  was  guilty  of  a  fraud  of  which  he  or  those 
claiming  under  him  cannot  avail  themselves.  There  is 
nothing  on  the  face  of  the  survey  as  returned,  which  could 
lead  the  proprietary  officers  to  information  that  the  lands 
lay  beyond  the  Indian  purchase  j  and  the  deputy  surveyor 
has  sworn  that  his  commission  contained  only  an  authority 
to  survey  within  the  purchase  of  1 768. 

Assuming  it  then  au,a  ftict,  that  the  situation  of  the  lands 
beyond  the  Indian  pu  aase  made  at  Fort  Stanwix,  was 
unknown  either  to  the  grantors  or  grantee  at  the  time  of 
issuing  the  patent  on  the  18th  of  February  1775,  what  is 
the  law  arising  on  this  case  ? 

It  was  against  the  uniform  practice  of  the  proprietaries 
to  sell  lands  unpurchased  from  the  Indians ;  nor  was  it  their 
intention  to  do  so  in  the  present  instance.  A  mistake  had 
arisen  from  the  want  of  knowledge  in  the  deputy  surveyor 
of  an  unmarked  boundary  of  forty  or  fifty  miles  in  extent, 
which  had  never  been  run;  and  neither  party  meant  that 
lands  within  the  claim  of  the  natives  should  pass.  There 
was  not  therefore  the  union  of  two  minds  in  the  grant 
of  the  lands  in  question,  under  the  circumstances  of  this 
case. 

But  what  is  the  plaintiff's  equity  ?  The  lands  have  been 
paid  for  by  the  patentee  at  the  rate  of  Si.  sterling  per  one 

VOL.  VI.  K 


CASES  IN  THE  SUPREME  COURT 


THOMPSON 

v. 
JOHNSTON. 


1813.  hundred  acres ;  and  as  between  him  and  the  late  proprie* 
taries,  if  the  consideration  has  failed  either  in  whole  or  in 
part,  the  former  is  entitled  in  good  conscience  to  have  the 
consideration  money  refunded  in  proportion  to  the  defi- 
ciency of  his  title,  together  with  interest  thereon,  and  his 
reasonable  expenses.  The  Commonwealth  has  succeeded 
to  the  rights  of  the  proprietaries,  and  should  deal  out  the 
same  measure  of  justice  as  would  be  incumbent  on  the 
latter.  Beyond  this  the  plaintiff  has  no  fair  pretensions 
against  the  state.  Besides  the  relations  between  the  parties 
have  materially  changed  by  subsequent  events.  Previous 
to  the  Indian  purchase  at  Fort  Mackintosh,  the  land  office 
by  an  act  passed  21st  December  1784,  was  declared  to  be 
opened  for  sale  of  all  vacant  lands  within  the  state  (the  de- 
preciation and  donation  tracts  only  excepted)  at  the  rate  of 
SO/,  currency  for  every  one  hundred  acres.  In  pursuance 
thereof  Thomas  Johnston,  under  whom  the  defendant  in 
error  holds,  has  paid  for  the  lands  in  question  at  that  rate, 
and  the  equity  derived  under  him  is  evidently  superior  by 
a  positive  law  to  that  derived  under  Charles  Porter,  who 
paid  a  very  inferior  sum  for  the  lands  then  supposed  to  lay 
within  the  purchase.  To  give  a  preference  to  the  latter 
under  such  circumstances,  would  render  an  illegal  act  the 
means  of  obtaining  an  undue  advantage  over  the  rest  of  the 
community.  , 

Such  were  evidently  the  grouno^'"  .  the  legislative  deter- 
mination upon  the  petitions  of  James  Milligan  and  Hugh 
Lenox,  presented  22d  March  1785,  {Journals  of  Assembly 
235,)  and  of  William  Parr,  Owen  Biddle  and  Clement  Biddle, 
presented  28th  of  the  same  month.  (Ib.  252).  For  although 
the  committee  on  both  petitions  reported  on  the  5th  of  April 
1785,  "that  at  the  times  of  the  petitioners  making  the  lo- 
"  cations  and  paying  the  purchase  money,  it  was  understood 
"  and  believed  that  the  lands  were  within  the  lines  of  the 
"  Indian  purchase,  but  that  the  line  which  was  run  from  the 
"  western  branch  of  Susquehanna  to  the  Allegheny,  in  or 
"about  April  or  May  1775,  is  said  to  have  excluded  the 
"  lands  so  located  and  returned  or  part  of  them; — yet  they 
"were  nevertheless  of  opinion  that  the  claimants  had  an 
tl  equitable  claim  to  have  the  lands  confirmed  to  the  war- 
"  rantees,  or  t/ieir  leg.il  representatives  or  assigns,  and  re- 


OF  PENNSYLVANIA. 


75 


"  commended  a  resolution  that  the  prayer  of  the  petitions 
"  should  be  granted."  The  legislature  however  refused  to 
adopt  the  report,  (Ib.  286.)  and  no  provision  was  made  in 
the  subsequent  law  of  8th  April  1785  allowing  a  preference 
in  such  cases. 

Upon  the  whole  I  am  of  opinion  that  the  judgment  of 
the  Court  of  Common  Pleas  of  Indiana  county  should  be 
affirmed. 


BRACKENRIDGE  J.  At  the  time  of  the  proprietary  grant 
made  to  the  plaintiff  in  this  case,  had  the  charter  proprietor 
a  right  to  the  land  granted,  or  has  he  since  acquired  a  right, 
so  that  he  could  have  it  in  his  power  to  make  a  title,  though  f 
originally  he  had  not  ?  The  king  of  England,  under  whom 
the  charter  was  granted,  would  seem  to  have  considered 
himself  as  having  an  absolute  right  to  the  soil  ;  for  there  is 
nothing  said  as  to  the  rights  of  the  Aborigines,  or  any  reser- 
vation made  in  granting  the  charter.  From  the  first  disco- 
very of  the  continents  or  islands  of  America,  these  Aborigines 
were  not  considered  as  having  any  right,  not  being  chris- 
tians,  but  mere  heathens  and  unworthy  of  the  earth.  The 
pope,  as  head  of  the  church,  considered  himself  as  having 
the  title  paramount  and  the  absolute  right  of  the  soil.  "  The 
earth  is  the  Lord's  and  the  fullness  thereof,"  says  the  scrip- 
ture ;  and  for  whose  use  could  it  be  intended  but  for  that  of 
the  heirs  of  salvation.  This  was  the  catholic  notion  of  the 
right;  nor  would  the  protestant  church  seem  to  have  en 
tertained  different  ideas  as  respected  the  claim  of  the  origi- 
nal inhabitants  of  the  country.  For  on  the  crown  of  England 
becoming  protestant,  we  find  no  distinction  taken,  or  modi- 
fication of  the  grants  that  were  made  under  it.  The  bare 
right  of  discovery  is  all  that  is  referred  to  as  warranting  a 
right  of  property  in  the  country  so  discovered.  But  the  pro- 
prietor himself  taking  the  charter,  would  not  seem  to  have 
considered  it  as  giving  a  right  paramount  and  above  that  of 
the  Aborigines;  on  the  contrary  he  would  seem  to  have 
acknowledged  the  right  of  the  natives  by  purchasing  from 
them.  But  it  is  observable  at  the  same  time  that  he  consi- 
dered himself  as  possessing  an  interest  in  the  soil,  exclusive 
to  a  certain  extent  ;  otherwise  why  claim  a  monopoly  in  his 
disposal  of  lands  within  thl  cfiarter  boundary  ?  He  would  not 


1813. 


THOMPSON 

v. 
JOHNSTOX. 


76 


CASES  IN  THE  SUPREME  COURT 


1813.        himself  take  possession  without  giving  an  equivalent,  but  he 
THOMPSON    wou"tl  not  Permit  others  to  purchase.  This  was  bringing  the 
v.  Indian  to  his  own  market,  where,  if  he  sells  at  all,  the  In- 

JOHNSTON.  dian  must  take  what  he  could  get  from  this  his  only  cus- 
tomer. This  was  an  indirect  constraint,  and  in  fact  excercising 
an  interest  in  the  soil,  an  ownership  of  it.  It  cannot  be  said 
therefore  that  the  proprietor  admitted  an  absolute  dominion 
in  the  native  to  the  ownership  of  the  soil.  In  fact  he  consi- 
dered the  Indian  title  as  but  in  the  nature  of  a  claim.  Nor 
was  it  altogether  without  reason  that  he  so  considered  it ; 
not  for  the  reason  already  hinted  at,  the  not  being  a  Chris- 
tian, but  for  the  not  being  a  man ;  in  other  words,  the  not 
living  more  humano,  and  after  the  manner  of  men.  For  what 
distinguishes  an  Indian  from  a  wild  beast,  an  animal  ferce 
natura;,  who  lives  upon  his  prey  and  cultivates  little  or  no 
soil?  And  hence  it  is  that  if  he  claims  a  right  to  what  soil 
shall  be  necessary,  living  in  this  manner,  it  will  be  more  than 
will  fall  to  his  share  as  one  of  the  family  of  mankind ;  for 
the  cultivation  of  the  soil  will  support  a  greater  population, 
than  a  life  by  hunting,  and  therefore  this  mode  of  life  is 
less  according  to  the  law  of  nature.  It  is  on  this  principle 
that  the  philosopher  fastens  in  reducing  the  claim  of  the 
savage  from  that  extensive  range  of  a  life  by  hunting,  to  a 
more  confined  extent  of  subsistence  by  tilling  the  gtound. 
With  regard  to  the  whole  of  mankind,  a  savage  cannot  be 
said  to  have  an  absolute  right  to  the  soil  he  occupies,  since 
he  does  not  occupy  it  in  a  way  that  contributes  to  the  civi- 
lization of  man  ;  for  a  close  population  and  the  scarcity  of 
soil  to  a  certain  extent,  are  necessary  to  the  improvement  of 
the  species.  Arts  and  manufactures  are  the  offspring  of  a 
close  cohabitation,  science  also  and  all  those  endowments 
which  elevate  human  nature.  Hence  cities,  towns  and  dense 
settlements  produce  refinement  in  manners,  and  lead  to  the 
cultivation  of  literature  and  to  all  mental  enjoyments.  Can. 
those  therefore  be  said  to  have  a  perfect  right  to  the  soil, 
who  do  not  use  it  themselves  in  a  proper  manner  ?  Can  they 
be  said  to  have  a  right  to  hinder  others  to  use  it  ?  I  know 
the  extent  of  this  argument,  and  it  is  sufficient  to  open 
the  vista  to  see  where  it  will  lead.  It  will  terminate  in  this, 
that  with  respect  to  the  community  of  nations,  there  can 
be  no  absolute  right  of  soil  in-  any  nation,  unless  where 


OF  PENNSYLVANIA.  77 

it  can  be    ascertained    that    taking    quantity  and    quality        1813, 
into  view,  and  relative  contiguity  to  marine   productions,    7f HOMPSON 
no  more  of  the  earth  is  occupied  by  one  than  another,  or  at  p. 

least  no  more  than  in  proportion  to  their  size  and  the  pro- 
duction  of  what  is  necessary  for  their  subsistence.  For  to 
reduce  it  to  strict  principle,  as  the  length  and  breadth  of  the 
place  of  interment  is  to  the  body  of  a  man  at  death,  so  is 
his  proportion  of  the  soil  during  life.  But  upon  this  princi- 
ple in  making  such  allotment,  we  must  consider  every  por- 
tion of  soil  equally  productive,  which  it  is  not,  or  at  least 
made  equally  capable  of  subsisting,  by  the  adjoining  element 
of  water,  fowling  or  fishing  or  some  such  advantage.  But 
though  it  may  not  be  practicable  to  ascertain  to  what  por- 
tion of  any  soil  the  right  of  an  individual  may  extend  in  a 
state  of  nature,  yet  the  claim  of  the  savage  is  monstrous, 
living  by  hunting  and  claiming  beyond  all  reasonable  extent. 
I  therefore  do  not  respect  the  claim  of  a  native  Indian  as  he 
is  called,  in  the  light  of  an  absolute  right  to  the  whole  ex- 
tent of  the  soil  he  is  accustomed  to  range  over,  or  rather  to 
prowl  across  in  his  pursuit  of  wild  beasts.  The  proprietor 
did  not  seem  to  have  considered  it  in  that  light,  otherwise 
he  could  not  have  thought  himself  justifiable  in  restraining 
others  from  purchasing  this  right  from  the  native,  should 
he  be  disposed  to  sell.  He  seems  to  have  considered  the 
native  as  having  something  like  a  lien  on  it,  a  special  pro- 
perty in  the  whole,  but  an  absolute  right  only  to  so  much 
of  it,  as  living  by  cultivating  it,  might  be  necessary  for.  his 
subsistence.  Hence  it  is  that  we  hear  of  extinguishing  the 
Indian  title.  And  it  was  at  all  times  well  understood  both 
by  the  proprietary  and  others,  that  the  extinguishing  this 
title  was  practicable,  by  an  easy  purchase  from  time  to 
time,  so  as  at  no  distant  day  to  include  the  whole  within 
the  charter  boundary.  It  was  little  else  than  a  mere  matter 
of  form  to  reserve  the  Indian  title  in  the  grants  made  by  the 
proprietary,  though  it  was  usual  to  make  such  a  reservation 
44  of  lands  lying  within  the  late  purchase  made  of  the  In- 
"  dians."  Yet  on  the  score  of  interest  in  the  soil,  had  not  the 
proprietor  William  Penn,  and  those  under  him,  the  same 
right  to  grant  before  a  purchase,  as  the  king  of  England  had 
to  grant  to  him  ?  The  proprietor  by  taking  the  charter  can- 
not be  said  not  to  have  acknowledged  the  right  of  the  king 


78 


1813. 


THOMPSON 

v. 
JOHNSTON. 


of  England  to  grant;  and  the  charter  being  taken  without 
'any  reservation  of  the  rights  of  the  natives,  goes  some 
length  in  implying  an  idea  on  the  part  of  the  proprietor  that 
they  had  no  right;  at  least  that  it  was  not  an  absolute  right. 
For  with  the  full  knowledge  of  all  the  circumstances  in  his 
mind,  it  would  be  idle  to  accept  as  a  compensation  for  ser- 
vices or  even  as  a  gratuity,  what  was  of  no  value.  It  might 
be  said,  it  is  true,  that  he  accepted  the  king  of  England's 
good  will  to  this  soil,  not  regarding  it  as  a  title.  But  the 
matter  of  fact  is,  that  in  the  understanding  of  both  pro- 
prietor and  settler  that  came  with  him,  the  king's  right  was 
considered  good,  though  founded  but  on  the  right  of  disco- 
very ;  and  the  savages  were  considered  as  but  having  a 
claim,  which  more  for  the  sake  of  peace  than  of  obligation, 
it  behoved  them  to  extinguish. 

But  as  this  matter  of  fact  may  be  disputed,  the  under- 
standing on  the  part  of  the  proprietor  or  those  settling  under 
him,  let  it  rest  on  matter  of  law ;  and  it  cannot  be  denied  to 
be  a  principle,  that  an  individual  selling  that  to  which  he  has 
no  right,  yet  if  he  after  acquires  a  right,  it  shall  enure  to 
the  use  of  him  to  whom  he  sold.  Would  the  proprietor  have 
been  bound  after  having  made  a  purchase  of  the  Indians,  to 
complete  a  title  for  land  sold  before  a  purchase  of  it  from 
the  Indians  ?  This  will  depend  upon  his  having  intended  to 
grant  the  land  in  question,  or  the  not  having  used  the  pro- 
per means  on  his  part  to  ascertain  and  to  know  what  he  was 
granting.  It  will  not  lie  in  his  mouth  after  having  received 
a  valuable  consideration,  to  allege  that  he  was  mistaken  in 
his  grant,  unless  the  mistake  was  induced  by  the  purchaser, 
or  the  proprietor  deceived  in  his  grant.  Whose  duty  was  it 
to  measure  off  the  land,  and  to  know  what  was  to  be  mea- 
sured off  ?  Whose  officer  was  the  surveyor  ?  He  has  been 
said  to  be  the  agent  of  both  purchaser  and  proprietor.  Could 
the  purchaser  change  him  as  he  would  change  an  agent? 
The  proprietor  could.  I  consider  it  just  the  same  thing  as 
if  the  proprietor  himself  had  been  present,  and  had  measur- 
ed off  the  land.  The  boundary  of  the  purchase,  in  other 
words,  the  purchase  line,  was  known  to  neither  of  them ;  but 
it  was  in  the  power  of  the  proprietor  to  have  ascertained 
it.  The  purchaser  could  not,  for  it  would  have  been  at  his 
peril  to  have  entered  on  the  soil  of  the  proprietor  and  to 


OF  PENNSYLVANIA. 


79 


have  run  and  marked  lines  for  the  purpose  of  ascertaining         1813. 
the  boundary.     It  would  have  been  unreasonable  that  he     THOMPSON 
should  have  been  at  this  expense  for  the  sake  of  a  single  v. 

tract.  It  behoved  the  proprietor  to  have  had  the  boundary  JOHNSTON. 
ascertained,  before  he  granted  a  single  warrant  or  authoriz- 
ed a  single  survey  for  the  new  purchase  j  because  it  could 
not  be  mathematically  known,  nor,  unless  where  natural 
boundaries  were  called  for,  could  it  be  certainly  known 
where  the  land  measured  off  might  lie.  There  was  no  mis- 
take of  the  individual  spot  shewn  to  the  surveyor.  The 
tract  to  be  surveyed  was  shewn  to  the  officer  of  the  pro- 
prietor. There  was  no  fraud  on  the  part  of  the  purchaser; 
and  I  view  it  in  the  same  light,  as  if  a  merchant  in  his  shop, 
meaning  to  sell  to  a  certain  extent  of  the  piece,  should  cut 
off  a  yard  beyond,  and  receive  the  price  and  deliver  it  to 
the  buyer.  The  making  a  survey  and  running  lines,  and 
marking  beyond  the  line  of  the  Indian  purchase,  might  give 
umbrage  to  the  Indians  ^  and  subject  the  country  to  a  war, 
as  a  settlement  would  do ;  and  it  was  prohibited  by  law  to 
make  a  settlement,  and  with  a  view  to  this  policy.  But  though 
the  legislature  by  an  act  could  prohibit  settlements,  being 
an  act  operating  upon  their  own  citizens,  yet  they  could  not 
prohibit  the  charter  proprietor  from  surveying  and  selling 
the  property  admitted  to  be  his,  and  therefore  shall  not  be 
presumed  to  have  done  it,  nor  the  act  in  question  be  con- 
strued to  have  gone  so  far. 

I  do  not  think  it  would  have  lain  in  the  mouth  of  the 
proprietor  to  say,  that  not  having  run  the  purchase  line,  he 
had  suffered  a  survey  to  be  made,  which  now  appeared  to 
be  over  it,  having  received  the  fees  of  office  for  surveying, 
and  the  purchase  money.  He  would  have  been  compellable 
in  equity  to  grant  a  patent,  had  he  not  granted  it;  but 
having  granted  it  and  completed  the  agreement,  2  Powel 
on  Contracts  263  is  in  point  that  he  was  bound  by  it,  where 
it  is  the  mistake  of  all  the  parties  to  the  agreement,  and  no 
one  is  more  under  an  imposition  than  another.  Courts  of 
equity  hold  that  to  shake  them  on  that  account  would  be  mis- 
chievous, tending  to  make  all  agreements  vain  and  nugatory ; 
and  in  such  a  case  the  mistake  is  not  the  occasion  of  the 
promise,  therefore  the  act  is  valid,  there  being  nothing 
wanting  of  the  assent  or  bona  fides.  When  in  addition  to 


CASES  IN  THE  SUPREME  COURT 


1813. 


THOMPSON 

v. 
JOHNSTON. 


this  it  is  considered  that  it  more  behoved  the  one  party 
"to  have  prevented  the  mistake  than  the  other,  the  case  is 
the  stronger.  The  proprietor  could  have  the  line  run  defini- 
tively between  him  and  the  Indians,  according  to  the  sale 
made  by  them  ;  the  grantee  could  not.  He  had  not  authority 
even  had  he  gone  to  the  expense  ;  it  was  a  line  of  forty  or 
fifty  miles,  and  his  running  might  neither'  have  satisfied  the 
proprietor  nor  the  Indians.  It  is  admitted  by  the  counsel, 
and  it  could  not  but  be  admitted,  that  in  chancery  the 
proprietor  would  have  been  compelled  to  refund  the  money. 
But  if  the  party  who  could  have  compelled  him  to  refund 
had  got  the  land,  why  not  keep  it  ?  Melwr  est  conditio  pas- 
sidentis.  Whatever  the  proprietor  was  compellable  to  abide 
by,  will  not  the  Commonwealth  which  succeeds  to  his 
rights  be  bound  to  do  ?  The  Commonwealth  has  succeeded 
to  his  estate  in  these  lands.  But  by  the  act,  that  of  the  27th 
of  November  1779,  there  is  a  reservation  of  all  rights, 
titles,  estates,  claims  and  demands  which  were  granted 
by  or  derived  from  the  said  proprietaries,  their  officers 
or  others  by  them  duly  commissioned,  authorized  and  ap- 
pointed or  otherwise,  or  to  which  any  person  or  persons 
other  than  the  said  proprietaries  were  or  are  entitled, 
either  in  law  or  equity,  by  virtue  of  any  deed,  patent, 
warrant  or  survey,  of,  in  or  to  any  part  or  portion  of  the 
lands  comprised  or  contained  within  the  limits  of  this  state, 
&c.  or  by  virtue  of  any  location,  &c.  Could  there  b(j  any 
thing  more  extensive  than  such  a  reservation  ?  "  Officers 
"duly  appointed  or  otherwise"  They  were  willing  to 
embrace  every  possible  equity  that  could  be  in  any  party, 
claiming  from  by  or  under  the  proprietor.  And  when  it  is 
considered  that  it  was  an  exercise  of  the  dominium  eminens, 
as  the  civilians  term  it,  or  transcendental  right,  as  Burlamaqui 
calls  it,  a  divesting  property  on  the  ground  of  the  salus 
populi,  the  supreme  law,  shall  we  be  putting  a  hard  con- 
struction on  the  law  as  affecting  third  persons,  and  applying 
the  rule  of  the  summum  jus  ?  Even  had  the  proprietors 
themselves  been  concerned,  it  cannot  be  alleged  that  they 
could  now  be  called  upon  to  refund,  since  they  have 
made  no  objections  to  the  grant,  but  affirmed  it  by  a 
patent  so  early  as  February  1775.  Or  would  it  be  rea- 
sonable to  turn  the  purchaser  round  to  recur  to  them? 


OF  PENNSYLVANIA. 
The  Commonwealth  has  made  no  offer  to  refund  the  pur-        1813. 


chase  money  with   interest,  even  if  this  could  divest  the    THOMPSON 
right  of  the  purchasers.     I  have  never  met  with  any  thing  v. 

that  has  appeared  to  me  a  clearer  case  both  of  equity  and    JOHNSTON. 
law.     Let  me  consider  it  a  little  more.     The  proprietary 
estate  was  taken  away  on  the  ground  of  being  too  enor- 
mously great,  to  be  consistent  with  the  freedom  of  a  repub- 
lican government,  which  cannot  endure  such  inequality  of 
possessions  in  an  individual.  This  was  a  principal  conside- 
ration, setting  aside  socage  render  and  quit  rents,  which  were 
a  badge  of  the  ancient  tenures  under  great  lords  in  England; 
but  the  chief  argument  urged,  was  the  inequality  of  the 
possession.     Now  an  adequate  or  equivalent. compensation 
would  be  inconsistent  with  the  taking  away,  for  in  that  case 
the  inequality  would  still    exist   in    another    shape.     The 
130,OOO/.  was  not  therefore  a  compensation  in  value,  but 
something  in  consideration  of  what  had  been  taken  away  ;  a 
sum  which  the  proprietary  family  might  be  suffered  to  re- 
tain, as  not  inconsistent  with  the  individual  freedom  of  the 
community.     It  was  nevertheless  thought  a  hard  case,  and 
the  legislature  themselves  did  so  consider  it ;  for  as  to  claims 
derived  under  the  proprietor,    they  have  been  manifestly 
liberal  in  their  provisions  and  reservations.     They  had  no 
idea  of  looking  at  the  circumstance  of  a  survey  being  made 
by  a  surveyor  out  of  his  district,  or  not  duly  commissioned, 
or  made  on  land  in  one  county  when  the  warrant  called  for 
another,  or  whether  the  dividing  line  of  a  purchase  from 
the  Indian  territory  ran  through  it  or  left  it  out.  They  con- 
firmed all  these  things  in  bulk,  lands  surveyed  or  grants 
made  in  a  course  of  a  regular  proceeding  of  the  land  office 
or  otherwise.     But  even  were  not  this  act  to  be  considered 
as  a  species  of  confiscation  which  is  not  favoured  by  our 
laws,  all  forfeitures  being  odious,  and  supposing  the  succes- 
sion by  the  Commonwealth  to  be  as  heir,  and  free  from  all 
odium  of  taking  property  under  the  idea  of  an  imperious 
necessity,  yet  even  in  England  where  the  heir  is  so  much 
favoured  by  the  common  law,  would  he  not  be  compelled 
even  under  an  equitable  agreement  of  his  ancestor,  to  com- 
plete it  under  such  circumstances  ?  Land  not  at  market,  but 
by  the  mistake  of   supposing   it    at  market  measured  off, 
possession  taken,  and  the  usual  rent  stipulated,  or  what  is 
VOL.  VI.  L 


CASES  IN  THE  SUPREME  COURT 


v. 
JOHNSTON. 


1813.  more,  advanced,  or  what  is  stronger,  the  usual  whole  value 
THOMPSON  or  selling  price  of  lands  paid.  What  reason  have  we  to  sup- 
pose that  the  lord  of  the  soil  in  question,  the  proprietor, 
would  have  demanded  more  for  this  land  than  for  lands  be- 
fore sold,  the  5/.  sterling  an  hundred  acres  ?  For  what  an 
heir  may  be  called  upon  in  England  to  do,  I  will  cite  an 
authority  or  two.  "  The  heir  of  a  person  who  has  entered  into 
"  a  contract,  may  in  equity  be  liable  to  perform  it  although 
"  he  is  not  named  in  it.  For  where  a  person  articled  for  the 
"  sale  of  lands  which  he  convenanted  to  convey,  but  did  not 
**  covenant  for  him  and  his  heirs,  it  was  held  that  his  heirs- 
"  should  be  bound  to  perform  the  agreement.  Nerv.  on  Con. 
"  34.  If  A  agree  to  sell  lands  and  receive  part  of  the  purchase 
"  money,  and  before  any  conveyance  made  die,  his  heir  on  a 
"  bill  brought  against  him  will  be  decreed  to  convey."  Com. 
on  Con.  115.  But  it  will  be  said  this  is  not  the  case  of  an 
ancestor  or  heir  claiming  the  lands,  but  of  a  third  party,  a 
bona  fide  purchaser  of  the  lands  before  granted  by  the  an- 
cestor through  mistake.  He  may  be  a  bona  Jide,  but  is  he 
what  the  law  calls  an  innocent  purchaser?  Had  he  not  notice? 
The  survey  on  the  ground  was  notice ;  the  survey  was  re- 
turned into  the  office  and  a  patent  granted.  It  was  matter 
of  evident  notoriety  in  pals,  to  all  the  country,  that  these 
surveys  had  been  made ;  and  when  the  division  line  of  the 
purchase  came  to  be  run,  it  cut  some  of  them  in  two,  or  left 
but  a  selvage  in  the  old  purchase,  or  threw  them  out  alto- 
gether. It  was  a  catch  at  this  circumstance  that  led  to  the 
application  of  the  plaintiff  for  a  warrant,  and  to  survey 
across  these  lines.  But  had  the  contract  with  the  proprietor 
even  been  void,  I  can  cite  an  authority  that  will  shew,  that 
a  third  person  cannot  take  advantage  of  it  where  a  conside- 
ration has  been  paid.  If  a  person  lends  money  on  a  surren- 
der of  copyhold  lands,  but  which  is  not  presented  at  the 
next  Court,  for  want  whereof  it  is  void  by  the  custom  of 
the  manor,  and  afterwards  another  person  purchases  the 
same  land  from  the  mortgagor  with  notice  of  the  prior 
surrender,  and  takes  a  surrender  and  is  admitted  thereon, 
the  Court  will  decree  the  subsequent  purchaser  either  to 
pay  the  mortgagee  his  money,  or  to  surrender  him  the  legal 
estate.  New.  on  Con.  505.  There  is  but  one  single  particle 
of  equity  in  this  case,  as  between  the  proprietary  grantee 


OF  PENNSYLVANIA. 


83 


JOHNSTON. 


and  the  Commonwealth  or  the  plaintiff  deriving  title  under  1813. 
it.  It  might  be  said,  that  though  the  proprietor  might  have  THOMPSON 
been  considered  bound  to  extinguish  the  Indian  title  be- 
cause he  sold  at  the  usual  selling  price  of  lands  for  which 
the  Indian  title  was  extinguished,  yet  as  he  had  not  done  it 
before  it  was  put  out  of  his  power  to  do  it  by  the  Common- 
wealth taking  the  estate  from  him,  yet  the  Commonwealth 
having  at  a  subsequent  treaty  with  the  Indians  made  a  pur- 
chase, the  defendant  may  be  said  to  be  bound  to  contribute 
a  blanket  or  a  pair  of  leggens  as  his  proportion  of  the  extin- 
guishment. That  I  presume  he  would  have  no  objection  to 
do,  or  the  value  of  them  if  called  upon  for  it,  but  deducting 
at  the  same  time  his  proportion  of  the  tax  which  in  con- 
templation of  law,  we  must  presume  has  been  raised  towards 
this  extinguishment.  This  is  taking  up  matters  in  the  ex- 
tremest  rigour  which  the  law  could  require.  But  under  all 
circumstances  I  take  the  defendant  to  have  the  ground  valid 
under  him,  notwithstanding  the  proprietor  had  cut  from  a 
piece  of  cloth,  so  to  speak,  which  he  meant  to  have  kept  a 
while  by  him,  and  not  to  have  disposed  of  at  that  time ;  and 
this  is  all  that  can  be  said  about  it.  Both  buyer  and  seller 
mistook  the  piece ;  both  are  contented,  but  a  third  person 
who  knew  all  this,  wishes  to  avail  himself  of  the  mistake.  I 
will  not  sanction  it,  or  so  far  as  my  opinion  goes,  suffer  it  to 
be  done. 

Judgment  affirmed. 


LITLE  against  TOLAND. 


IN  ERROH. 


Pittsburs; 
Saturday, 
September  11. 

In  a  notice  to  u 


T71  RROR  to  the  Common  Pleas  of  Washington  county.. 

J-^    In  the  Court  below,  Toland  brought  suit  against  Litle,  pence,  that  ifnlew 

a  justice  of  the  peace  of  Washing-ton  county,  for  issuing  a ficienttuTemls" 

fi.  fa.  against  his  goods,  without  any  previous  process  orw'thin  thirty 

T,  f-iru  •       -r      L     ,       ,    <lay3,a  writ  will  be 

judgment.  Upon  the  trial  of  the  cause,  to  justify  the  msti-  sued  out  against 

him  kc.  it  is  not 

necessary  to  insert  in  the  notice  the  kind  of  writ  whether  capias  or  summons,  nor  the  kind  of  action , 
whether  trespass  or  case. 

To  a  justice  of  the  peace  in  Waslungton  county,  it  is  sufficient  notice  of  the  abode  of  the  part,  's 
attorney,  to  describe  him  as  T.  Ji.  offFathington,  that  meaning  in  comtnou  parlance  the  town  oi 
Washington. 


84 


CASES  IN  THE  SUPREME  COUP/T 


1813. 


LlTLE 

V. 
TOLAND. 


tution  of  the  suit  under  the  act  of  the  21st  of  March  1772, 
"the  plaintiff  proved  that  the  following  notice  had  been  given 
to  the  magistrate  thirty  days  and  more  before  the  suit : 

Washington,  15th  March  1809. 
Alexander  Lille,  Esq. 

SIR, 

You  will  take  notice,  that  if  you  do  not  tender  sufficient 
amends  within  thirty  days  from  the  date  hereof,  I  will 
bring  my  action  or  actions  against  you  in  the  Court  of 
Common  Pleas  for  the  county  of  Washington,  in  the  follow- 
ing cases  to  wit :  that  you  without  any  previous  process 
whatever,  issued  an  execution  directed  to  Chapman  a  con- 
stable, commanding  him  to  levy  of  my  goods  and  chattels, 
the  sum  of  20  dollars  23  cents,  to  satisfy  a  judgment  with 
costs  which  John  Clark  had  obtained  against  me,  although 
no  such  judgment  legally  existed,  and  when  in  reality  I  was 
not  indebted  to  John  Clark  in  any  thing  whatever.  That 
upon  this  execution  thus  illegally  and  oppressively  issued 
by  you,  a  horse,  my  property,  was  seized  by  the  said  consta- 
ble and  publicly  sold.  I  also  complain  that  you  have  in 
many  cases  issued  your  fieri  facias  against  me  as  a  con- 
stable, your  judgment  and  execution,  illegally,  unjustly  and 
without  cause,  particularly  in  the  case  of  John  Huey  v. 
John  Irey,  Martin  Hornish  v.  David  Hamilton,  William 
Wilson  v.  James  Johnston,  where  no  process  had  ever  been 
in  my  hands  for  same :  by  reason  of  all  which  illegal  and 
oppressive  conduct  of  yours,  I  have  sustained  material  in- 
jury and  damage.  I  am  sir  yours, 

WILLIAM  TOLAND. 

(ENDORSED.) 
"  Thomas  Baird,  of  Washington,  is  my  attorney." 

The  court  below  declared  that  the  notice  was  legal  and 
sufficient :  and  the  exceptions  here  taken  to  it,  were  1 .  That 
it  did  not  specify  the  kind  of  action  \Q  be  brought :  2.  Nor 
the  kind  of  writ  or  process.  3.  Nor  did  it  describe  the  at- 
torney's abode. 

The  act  of  21st  March  1772,  enacts  that  no  writ  shall 
be  sued  out  against,  nor  anv  copy  of  any  process  at  the  suit 
of  a  subject  shall  be  served  on,  any  justice  of  the  peace,  for 


OF  PENNSYLVANIA. 


85 


any  thing  by  him  done  in  the  execution  of  his  office,  until 
notice  in  writing  of  such  intended  writ  or  process  shall  have"" 
been  delivered  to  him,  or  left  at  his  usual  place  of  abode, 
by  the  party,  his  attorney  or  agent,  who  intends  to  sue  &c. 
at  least  thirty  days  before  the  suing  out  or  serving  the  same  : 
in  which  notice  shall  be  clearly  and  explicitly  contained  the 
cause  of  action,  which  the  said  party  hath  &c.  against  the 
said  justice  of  the  peace:  on  the  back  of  which  notice  shall 
be  endorsed  the  name  of  such  attorney  or  agent,  together 
with  the  place  of  his  abode. 

The  cause  was  argued  at  September  Term  last,  by 

Campbell,  for  the  plaintiff  in  error,  and  by 

Jennings  and  Mountain,  contra. 

Cur.  adv.  tiult. 

This  day  the  judges  delivered  their  opinions. 

TILGHMAN  C.  J.  This  is  an  action  against  a  justice  of 
the  peace  for  an  act  done  in  the  execution  of  his  office. 

The  errors  assigned  are  that  the  Court  of  Common  Pleas 
declared  that  the  notice  given  by  the  plaintiff  to  the  defend- 
ant, prior  to  the  commencement  of  the  suit,  under  the  act 
of  21st  March  1772,  was  legal  and  sufficient,  when  the  said 
notice  did  not  specify  either  the  kind  of  writ  or  process, 
the  kind  of  action,  or  the  place  of  abode  of  the  attorney  for 
the  plaintiff.  The  exception  so  far  as  it  relates  to  the  kind 
of  writ  or  process,  was  abandoned  on  the  argument,  and 
very  properly,  because  that  point  had  been  decided  in  the 
case  of  Mitchell  v.  Cowgill,  at  Sunbury,  June  1811.  In  the 
same  case  I  consider  it  as  having  been  decided  also,  that 
it  was  unnecessary  to  give  notice  of  the  kind  of  action,  and 
that  it  was  sufficient  if  notice  was  given  that  an  action  would 
be  brought,  and  the  cause  of  action  clearly  described.  I  shall 
not  now  go  over  the  ground  which  was  taken  in  that  case, 
but  refer  to  it  in  the  4th  Volume  of  Binney*s  Reports,  p.  20. 
It  is  not  denied  that  the  cause  of  the  action  which  has  been 
brought,  was  set  forth  with  sufficient  certainty,  although 
there  were  other  causes  of  action  not  clearly  described,  on 
which  no  actions  have  been  brought. 


1813. 


LlTI.E 

V. 
TOLAND. 


86  CASES  IN  THE  SUPREME  COURT 

1813.  The  only  remaining  objection  to  the  notice  is  the  manner  in 

LITLE which  the  place  of  abode  of  the  plaintiff's  attorney  is  described, 
i?.  *'  Thomas  Baird  of  Washington,  is  my  attorney."  It  is  to  be 

TOLAND.  observed  that  in  this  respect  the  English  statute  of  24  Geo.  2. 
c.  44.  and  our  act  of  assembly  are  not  exactly  alike.  The  statute 
directs  that  notice  shall  be  given  by  the  attorney  or  agent  for 
the  party  who  intends  to  cause  the  writ  to  be  sued  out.  The 
act  says  that  notice  shall  be  given  by  the  party,  his  attorney 
or  agent,  so  that  if  the  plaintiff  should  think  proper  to  sue 
out  a  writ  himself,  as  is  sometimes  done  in  this  country 
without  employing  any  agent  or  attorney,  it  would  be  un- 
necessary to  say  any  thing  about  the  place  of  abode  of  the 
attorney,  because  the  act  did  not  require  that  a  man  should 
employ  an  attorney  merely  for  the  sake  of  giving  notice 
where  he  lived.  But  if  the  plaintiff  lived  out  of  the  county 
in  which  the  suit  is  brought,  perhaps  it  might  be  necessary 
to  employ  an  attorney  or  agent  within  the  county,  and  give 
notice  of  his  place  of  abode,  because  the  object  of  the  act 
was  that  the  justice  should  receive  such  notice  as  should 
afford  him  a  reasonable  opportunity  of  tendering  amends.  In 
the  present  instance  however  it  appears  that  he  did  employ 
an  attorney,  and  therefore  it  was  incumbent  on  him  to  give 
notice  of  his  place  of  abode.  The  words  of  the  act  are  "  on 
*'  the  back  of  which  notice  shall  be  endorsed  the  name  of 
*'  such  attorney  or  agent  tog-ether  -with  the  place  of  his 
"  abode.''''  The  objection  is  that  there  are  many  towns  and 
many  counties  in  different  states  called  Washington.  To  be 
sure  it  would  have  been  more  certain,  if  it  had  been  said, 
"  Thomas  Baird,  living  in  the  town  of  Washington,  in  the 
**  county  of  Washington,  in  the  state  of  Pennsylvania."  But 
yet  I  cannot  help  thinking  that"  Thomas  Baird,  of  Wash- 
"  ington,"  is  sufficiently  descriptive.  In  construing  this  kind 
of  language  it  is  fair  to  have  recourse  to  the  common  un- 
derstanding of  the  country.  When  a  town  and  county  have 
the  same  name,  and  the  name  generally  is  mentioned,  the 
town  is  understood.  When  we  speak  of  a  person  living  in 
Philadelphia  for  instance,  it  is  supposed  that  he  lives  in  the 
city.  So  in  Washington  would  imply  the  town  of  Washing' 
ton,  when  two  persons  living  in  the  county  should  use  that 
expression.  It  is  true  there  are  other  Washingtons  in  this 
state,  and  almost  every  state  of  the  Union.  But  in  constru- 


OF  PENNSYLVANIA. 

ing  this  notice  we  must  not  lose  sight  of  the  place  where 
the  justice  lived,  against  whom  the  action  was  to  be  brought.  ~" 
He  lived  in  the  county  of  Washington,  and  therefore  had  no 
reason  to  suppose  that  any  place  out  of  that  county  was  in- 
tended. The  intent  of  the  act  of  assembly  was  that  the  jus- 
tice should  have  fair  notice  of  the  place  of  abode  of  the 
plaintiff's  attorney.  I  cannot  suppose  that  in  this  case  he 
was  left  under  any  doubt,  and  therefore  the  notice  was  suf- 
ficient. My  opinion  is  that  the  judgment  should  be  affirmed. 

YEATES  J.  Three  exceptions  have  been  taken  to  the  va- 
lidity of  the  notice  served  upon  the  plaintiff  in  error,  pre- 
vious to  the  institution  of  the  suit  against  him  for  acts 
done  by  him  in  the  execution  of  his  office  as  a  justice  of 
the  peace,  under  the  act  of  assembly  passed  21st  March 
1772.  1  Dall.  St.  Laws,  604. 

The  first  is  that  the  notice  does  not  specify  whether  a 
summons  or  capias  would  be  issued  against  him.  I  do  not 
regard  this  as  material  to  the  justice,  or  that  it  would  in 
any  degree  influence  his  conduct  as  to  the  tender  of  amends. 
Besides,  the  propriety  of  issuing  process  of  either  kind 
would  depend  on  the  justice's  disposing  of  his  freehold 
within  the  thirty  days,  which  it  would  be  impossible  for  the 
defendant  in  error  to  know  when  he  served  the  notice. 

The  second  exception  is,  that  the  kind  of  action  is  not 
specified,  whether  it  would  be  trespass,  case,  debt,  &c.  I 
consider  the  decision  of  this  court  in  Mitchell  v.  Cowgill, 
in  the  Middle  District,  in  May  Term  1811,  as  having  put 
this  question  at  rest.  The  same  point  was  there  made  by 
the  counsel  and  unanimously  over-ruled  by  the  court.  An 
additional  reason  applies  in  the  present  instance.  The  1st 
section  of  the  British  statute  of  24  Geo.  2.  c.  44.  expresses 
the  act  of  notice  to  be  by  the  attorney  or  agent  for  the 
party  complaining,  7  Ruff'.  Stat.  389.  But  the  first  section 
of  our  law  of  the  21st  of  March  1772,  speaks  of  the  party 
his  attorney  or  agent,  either  of  whom  may  give  the  notice. 
It  cannot  be  supposed  that  the  party  himself  would  be  co- 
nusant  of  the  technical  boundaries  of  actions ;  and  therefore 
all  that  the  act  requires  of  him  is,  that  in  his  notice  shall  be 
clearly  and  explicitly  contained  his  cause  of  action.  This 
was  fully  done  by  the  defendant  in  error  in  the  written 


87 


1813. 


LlTLE 

V. 
TOLAND. 


1813. 


v. 

TOLAND. 


CASES  IN  THE  SUPREME  COURT 

notice  which  he  has  subscribed,  and  therefore  he  has  brought 
"himself  within  the  words  and  spirit  of  the  act. 

The  last  exception  is  that "  Thomas  Baird  of  Washington^ 
is  my  attorney,"  was  an  uncertain  designation  of  the  place  of 
his  abode.  But  I  have  no  difficulty  in  saying,  that  referring 
a  justice  of  the  peace  of  Washington  county,  to  an  attorney 
in  Washington,  would  in  common  parlance  be  intended  of 
the  town  of  Washington,  and  that  his  place  of  residence 
was  thereby  sufficiently  described. 

I  am  of   opinion,  that  the  judgment  of  the  Court  of 
Common  Pleas  be  affirmed. 


BRACKENRIDGE  J.  concurred. 


Judgment  affirmed. 


YOUNG  and  others  against  The  Commonwealth  for 
the  use  of  BOALS. 


E 


IN  ERROK. 


RROR  to  the  Common  Pleas  of  Indiana. 


6b  88 
llsrlOl 
2w312 
4w  55 
8w461 
3wh  88 


JMonday, 
September  13. 
Although  the 
act  of  21st  March 
1806,  authorizes 
the  defendant  to 

alter  his  plea  or       The  action  below  was  debt  against  Young  and  two  others 

defence  at  any  ,  .        ~    .   ,  ,         ,  ,         .       , 

time  on  or  before  as  sureties  in  his  otticial  bond  as  coroner,  taken  in  the  usual 
form  under  the  act  of  28th  March  1803-  To  this  the  defend- 


permission  of  the  ants  first  pleaded  non  est  factum  and  performance,  with 

Court.  Thedis-    ,  .          ,  .    ,  .  ,  ~        , 

cretionofthe       leave  to  give  the  special  matters  in  evidence.     On  the  12th 


of  June  1812»  the  plaintiff  replied  to  the  plea  of  performance, 
subject  to  review  "  that  the  said  Samuel  Young  &c.  have  not  kept  and  per- 
and  if  the  defend-  "  formed  the  condition  of  the  aforesaid  bond,  but  have 
ant  after  having  «  broken  the  same,  for  that  the  said  William  Baals  at  the  term 

already  pleaded, 

offers  to  plead      "  of  September  1  808,  by  the  judgment  of  the  Court  of  Com- 
pTeas&c/nCtining   "  mon  Pleas  of  Indiana  recovered  against  Thomas  McCartney 


ir  forhTsde""&c-   181  dollars   37  cents  damages  together  with  costs; 
fence,  it  is  error  «  whereupon  a  writ  otfi.fa.  tested  &c.  at  the  suit  of  the  said 

to  refuge  them. 

The  official  bond  of  a  coroner  may  be  given  in  evidence  in  a  suit  against  him  and  his  sureties, 
although  not  recorded  according  to  law  in  the  office  for  recording  deeds.  Giving  the  bond,  and 
acting  JD  the  office  are  prima  facie  evidence  that  the  sureties  have  been  approved  by  the  judges  of 
the  Common  Pleas. 

The  return  of  a  writ  by  a  coroner,  is  evidence  that  a  commission  issued  to  him. 

Unless  a  recognizance  is  given  by  a  coroner,  his  commission  and  all  acts  under  it  are  void,  and 
there  can  be  no  recovery  on  his  official  bond. 


OF  PENNSYLVANIA. 


89 


"  Boals  against  the  said  McCartney  &c.,  was  issued  &c.,  re- 
"  turnable  &c.,  directed  to  the  said  Samuel  Toung,  then  coro- ' 
"  ner,  and  to  him  in  due  form  of  law  to  execute  delivered, 
"  by  which  writ  he  was  commanded  &c.,  to  levy  the  sum  of 
44  &c. :  and  further  commanded  that  he  should  have  those 
"  monies  before  the  judges  &c.  at  &c.,  to  render  to  the  said 
"  Boals  :  at  which  term  the  said  Samuel  returned,  that  he  had 
"  levied  in  full  the  sum  of  &c.  as  by  the  writ  and  the  return 
"  &c.  appears.  Nevertheless  the  said  Samuel  had  never 
"  rendered  the  money  to  the  said  Boals."  The  replication 
concluded  with  a  profert  of  the  judgment,^/,  fa.  and  return. 

To  this  replication  the  defendants  on  the  20th  July  1812, 
rejoined  that  they  had  not  broken  the  condition  of  the  said 
bond,  in  manner  and  form  as  the  plaintiff  had  alleged  Sec., 
and  on  this  issue  was  joined. 

On  the  same  day  the  defendants  pleaded  two  additional 
pleas,  as  follows  :  1.  "  That  the  said  Commonwealth  ought 
"  not  to  have  or  maintain  her  said  action  against  them,  be- 
"  cause  they  say  that  previous  to  a  commission  having  been 
"  issued  and  granted  by  the  governor  of  the  said  Common- 
"  wealth  to  the  said  Samuel  Young,  as  coroner  of  said  county, 
"  the  said  Samuel  Toung  did  not  with  two  sufficient  sureties 
'*  enter  into  a  recognizance,  in  the  sum  required  by  law, 
"  that  he  would  well  and  faithfully  perform  all  and  singular 
"  the  duties  to  the  said  office  of  coroner  appertaining,  nor 
"  was  there  any  such  recognizance  as  aforesaid  taken  and 
"  recorded  by  the  recorder  of  deeds  of  said  county,  and 
"  transmitted  to  the  secretary  of  the  said  Commonwealth 
"  or  filed  in  the  office  of  the  said  secretary,  nor  was  the  said 
"  bond  recorded  in  the  recorder's  office  of  the  said  county, 
"  nor  were  the  sureties  named  in  the  said  bond,  to  wit  &c. 
"submitted  to  and  approved  of  by  the  judges  of  the 
"  Court  of  Common  Pleas  of  Indiana,  or  any  two  of  them, 
"  previous  to  the  granting  of  the  commission  to  the  said 
"  Samuel  as  coroner,  to  wit  until  the  9th  of  December  1806  ; 
"  nor  was  the  sufficiency  of  the  said  sureties  approved  of  by 
"  the  governor  of  the  said  Commonwealth,  previous  to  the 
"  issuing  of  the  commission ;"  and  so  concluded  with  a  veri- 
fication. 2.  "  That  at  the  time  of  and  before  the  execution 
"  of  the  said  bond,  to  wit,  on  &c.  at  the  county  aforesaid, 
"  the  said  Samuel  was  seized  in  his  demesne  as  of  fee,  of 
VOL.  VI.  M 


1813. 


YOUNG 

et  al. 

v. 

COMMON- 
WEALTH. 


CASES  IN  THE  SUPREME  COURT 


1813. 


YOUNG 
et  al. 

v. 

COMMON- 
WEALTH. 


"  and  in  a  tract  of  land  containing  &c.,  and  one  certain  lot 
'"  of  ground  situated  in  the  town  of  Indiana,  in  the  county 
"  of  Indiana,  then  and  there  of  the  value  of  50O  dollars,  and 
"  that  no  recognizance  was  taken  and  recorded  in  said 
"  county,  binding  the  said  Samuel  Young  for  the  perform- 
"  ance  of  the  duties  of  his  said  office  as  coroner,  agreeable 
"  to  law ;  and  that  by  reason  of  the  said  recognizance  not 
*'  having  been  taken  and  recorded,  the  said  Samuel  Toung 
"  hath  since,  to  wit  &c.  at  said  county,  aliened  &c.  his  inter- 
"  est  in  the  said  tract  of  land  to  &c.,  and  in  the  said  lot  to 
u  &c." ;  and  concluded  in  the  same  way. 

On  the  15th  of  September  1812,  the  counsel  for  the  de- 
fendants moved  the  Court  for  a  rule  on  the  plaintiff  to  re- 
ply to  the  two  last  pleas,  but  the  Court  denied  the  rule, 
and  being  required  to  file  their  reasons,  the  following  were 
assigned : 

1.  The  cause  appears  to  be  at  issue  on  the  plea  of  non 
estfactum,  and  on  that  of  performance ;  and  the  contents  of 
the  said  special  pleas,  if  they  could  be  of  any  avail  to  the 
defendants,  might  be  offered  under  leave  to  give  the  special 
matters  in  evidence. 

2.  The  Court  are  of  opinion  that  the  plaintiff  is  not  bound 
in  the  present  state  of  the  cause  to  put  in  any  replication 
to  the  said  pleas,  and  may  proceed  to  the  trial  of  the  issues 
on  the  record. 

The  cause  came  on  to  trial  on  the  15th  September  1812, 
when  the  plaintiff  to  maintain  the  issues  on  his  part,  gave 
in  evidence  the  original  bond,  which  was  proved  by  a  sub- 
scribing witness,  but  there  was  no  evidence  of  its  having 
been  recorded.  The  defendants  objected  to  the  evidence, 
but  the  court  admitted  it. 

The  plaintiff  further  gave  in  evidence  the  record  of  the 
judgment,  Ji>fa.  and  return  by  Toung;  as  stated  in  his  plea, 
and  there  rested  the  case. 

The  defendants  then  asked  the  Court  to  charge  the  jury, 
that  as  no  commission  to  Toung,  constituting  him  coroner, 
had  been  shewn  in  evidence,  the  present  action  was  not 
supported.  But  the  Court  declared  that  it  was  not  incum- 
bent on  the  plaintiff  to  produce  such  commission  in  order 
to  support  the  action. 

The  defendants  further  requested  the  Court  to  charge,  that 


OF  PENNSYLVANIA. 


the  action  was  not  supported,  because  no  evidence  had  been 
given  of  any  recognizance  having  been  taken  by  the  recorder  ~ 
of  deeds  agreeably  to  the  act  of  28th  March  1  803  ;  but  the 
Court  declared  that  such  evidence  was  unnecessary  in  sup- 
port of  the  present  suit.  Whereupon  a  bill  of  exceptions 
was  tendered  and  sealed. 

The  errors  relied  upon  in  this  Court  were, 
1  .  The  refusal  of  the  Court  to  rule  the  plaintiff  to  reply 
to  the  two  pleas  last  filed. 

2.  The  admission  of  the  bond,  without  proof  of  its  being 
recorded,  or  certified  and  transmitted  to  the  secretary  of 
state,  or  that  the  sureties   had   been   approved  of  by  the 
judges  of  the  Common  Pleas,  or  that  they   had  been  ap- 
proved by  the  governor,  or  that  a  commission  had  ever 
issued  to  Toung» 

3.  The  charge  of  the  Court,  that  it  was  not  necessary  to 
give  evidence  of  a  commission  having  issued  to  Toung. 

4.  The  charge  of  the  Court,  that  it  was  not  necessary  to 
prove  a  recognizance  to  have  been  taken  from  Toung  and 
his  sureties. 

Kelly  and  Foster  for  the  plaintiffs  in  error. 
Reed  and  Forward  contra. 

TILGHMAN  C.  J.  The  first  error  assigned  in  this  case,  is, 
that  the  cause  was  tried  without  joining  issue  on  two  special 
pleas  put  in  by  the  defendants  below.  It  is  said  in  answer  to 
this  objection,  that  the  Court  would  not  permit  the  pleas  to 
be  put  in,  or  what  isc,the  same  thing,  they  decided  that  the 
plaintiff  might  go  on  to  trial  without  replying  to  them. 
Although  the  act  of  21st  March  1806,  authorizes  the  de- 
fedant  to  alter  his  plea  or  defence  at  any  time  on  or  before 
the  trial,  yet  it  must  be  understood  that  this  is  to  be  by 
permission  of  the  Court  ;  otherwise  the  defendant  might 
harass  and  evade  the  plaintiff  forever,  by  constantly  put- 
ting in  new  pleas  when  the  cause  was  ready  for  trial,  or 
even  during  the  trial.  But  although  the  Court  have  a  discre- 
tion on  this  subject,  yet  it  is  a  legal  discretion,  subject  to 
the  review  of  this  Court  on  a  writ  of  error.  When  the  de- 
fendant offers  to  plead  specially,  a  matter  of  law  necessary 


1813. 


YOUNG 

etal. 

v. 

COMMON- 
WEALTH. 


CASES  IN  THE  SUPREME  COURT 


1813. 


YOUNG 
et  al. 

v. 

COMMON- 
WEALTH. 


for  his  defence,  he  should  be  permitted  to  do  it,  because  it 
tends  to  that  certainty  which  is  the  object  of  pleadings.  It 
tends  also  to  bring  the  point  before  the  proper  tribunal.  If 
the  matter  pleaded  is  demurred  to,  the  Court  decide  it ;  if 
denied,  it  goes  to  the  jury.  Whereas  by  the  general  issue 
with  leave  to  give  the  special  matter  in  evidence,  the  whole 
goes  to  the  jury  (subject  to  be  sure  to  the  charge  of  the 
Court)  in  so  confused  a  manner,  that  when  the  trial  comes 
on,  the  parties  hardly  know  what  is  to  be  tried.  I  am  there- 
fore of  opinion,  that  when  the  defendant  offers  such  a  plea, 
it  is  error  to  refuse  it,  unless  it  is  put  in  at  such  a  time  as 
shews  that  the  object  is  delay.  In  the  present  instance,  the 
reasons  assigned  by  the  Court  for  their  opinion,  shew  that 
the  pleas  were  not  rejected  because  they  were  put  in  for 
delay,  and  the  record  shews  the  same  thing,  because  they 
were  put  in  on  the  20th  of  July,  and  the  cause  was  not 
tried  until  September  following.  The  pleas  ought  therefore 
to  have  been  received,  and  the  plaintiff  should  have  been 
ordered  to  reply  to  them. 

2.  The  second  error  assigned  is  of  a  multifarious  nature ; 
it  includes  several  distinct  points  which  I  will  consider 
separately.  It  is  objected  that  the  bond  ought  not  to  have 
been  admitted  in  evidence,  because  it  was  not  recorded  in 
the  office  of  the  recorder  of  deeds,  and  transmitted  to  the 
secretary  and  recorded  in  his  office.  The  act  of  assembly 
directs  that  this  should  be  done,  and  it  ought  to  be  done. 
But  if  the  bond  is  sealed  and  delivered,  it  is  not  the  less 
valid  because  the  officers  of  the  Commonwealth  neglect  their 
duty  in  not  recording  it.  The  recording  was  for  the  facility 
of  proving  the  bond  on  a  trial,  as  well  as  for  safety  in  case 
of  loss.  These  advantages  are  lost  ,in  not  recording.  No 
copy  could  be  received  in  evidence,  and  the  plaintiff  was 
driven  to  the  necessity  of  producing  the  original.  He  did 
produce  it,  and  proved  the  execution;  that  being  done,  it 
was  proper  that  it  should  be  read  to  the  jury.  The  next 
objection  is,  that  there  was  no  proof  of  the  sureties  in  the 
bond  being  approved  by  the  judges  of  the  Court  of  Common 
Pleas  and  by  the  governor,  previous  to  its  execution.  I  can- 
not think  that  this  was  necessary.  The  bond  having  been 
executed,  and  the  coroner  having  acted  in  his  official  capa- 
city, it  may  fairly  be  presumed,  that  the  approbation  re- 


OF  PENNSYLVANIA. 


93 


quired  by  the  act  of  assembly  had  been  previously  given. 
Another  objection  is  that  there  was  no  proof  of  the  com- " 
mission  having  issued  to  the  coroner.  Neither  do  I  think 
that  this  proof  was  necessary.  It  was  proved  that  Samuel 
Toung  had  executed  and  returned  a  writ  directed  to  him  as 
coroner,  which  was  quite  sufficient,  because  he  had  no  right 
to  execute  the  writ  until  he  was  commissioned. 

3.  The  third  error  assigned  is,  that  the  Court  directed 
the  jury,  that  on  the  issue  joined,  evidence  of  a  commission 
having  issued  to  the  coroner  was  not  necessary.  I  have  taken 
notice  of  this  objection  before,  which  is  but  a  repetition  of 
what  was  included  in  the  second  error. 

4.  The  last  error  assigned  is,  that  the  Court  directed  the 
jury  that  there  was  no  occasion  for  the  plaintiff  to  prove  that 
a  recognizance  had  been  taken  by  the  recorder  of  deeds  of 
Indiana  county,  according  to  the  provision  of  the  act  of 
28th  March  1803.     The  opinion  of  the  Court  was,  "  that 
u  such  evidence  was  unnecessary  in  support  of  the  present 
"  suit."  In  considering  this  objection,  we  shall  perceive  the 
difficulty  into  which  the  defendants  were  thrown  by  the  re- 
jection of  their  special  plea.     If  that  plea  had  stood,  the 
plaintiff  must  either  have  demurred,  in  which  case  the  fact 
of  no  recognizance  having  been  given  would  have  been 
confessed,  or  he  must  have  replied  that  a  recognizance  was 
given,  and  then  it  would  have  lain  on   him  to  prove  it. 
Whereas  the  plaintiff's  counsel  now  contend,  that  if  no 
recognizance  was  given,  it  lay  upon  the  defendant  to  prove 
the  negative.  Whether  that  was  the  opinion  of  the  Court 
below,  does  not  clearly  appear.    They  only  say  that  it  was 
not  necessary  for  the  plaintiff  to  prove  that  a  recognizance 
was  given.    But  the  Court  having  declared  that  the  special 
plea  ought  not  to  be  received,  because  the  defendants  might 
have  all  the  advantage  of  it  on  the   general  issue,  it  would 
be  unjust  that  they  should  not  be  placed  in  the  same  situa- 
tion in  which  they  would  have  stood,  if  the  plea  had  been 
admitted,  and  then  it  would  have  lain  on  the  plaintiff  to 
prove  the  affirmative.    I  will  not  say  whether  the  recogni- 
zance might  not  have  been  good,  although  not  taken  before 
the  recorder,  if  taken  before  a  judge  of  the  Court  of  Com- 
mon Pleas  ;  but  if  no  recognizance  at  all  was  given,  it  ap- 
pears to  me  that  the  plaintiff  cannot  recover  on  the  bond. 


1813. 


YOUNG 
etal. 

v. 

COMMON- 
WEALTH. 


CASES  IN  THE  SUPREME  COURT 


1813. 


YOUNG 
etal. 

v. 

COMMON- 
WEALTH. 


Pittsburg, 
Monday, 
September  13. 
When  the 


The  act  of  assembly  directs  that  bond  and  recognizance 
shall  be  given,  and  that  unless  given,  "  the  commission  and  all 
"  acts  whatsoever,  done  by  the  coroner  under  colour  of  office, 
"  shall  be  void  and  of  no  effect."  Now  this  bond,  by  the  ex- 
press terms  of  the  condition,  is  to  have  no  effect  until  Sam  uel 
Toung  shall  be  duly  commissioned  coroner  &c.  But  a  void 
commission  is  no  commission  ;  therefore  by  the  positive 
provision  of  the  law,  there  can  be  no  recovery  on  the  bond 
unless  it  is  accompanied  with  a  recognizance.  This  may  be 
attended  with  excessive  hardship,  when  the  officers  of  the 
Commonwealth  have  been  so  inattentive,  as  not  to  see  that 
the  law  has  been  complied  with  before  the  commission 
issues,  or  at  least  before  any  process  is  put  into  the  hands 
of  the  sheriff  or  coroner  ;  and  it  may  be  doubted  whether 
the  legislature,  in  their  anxiety  to  enforce  security,  may  not 
have  gone  farther  than  was  necessary.  The  subject  is  well 
worthy  of  their  consideration  ;  for  as  the  law  stands,  both  in- 
dividuals and  the  public  may  be  subject  to  great  injury 
from  the  hardihood  of  a  sheriff  or  coroner  elect,  who  pre- 
sumes to  act  without  having  given  the  requisite  security. 
On  the  whole  it  is  my  opinion  that  the  judgment  should  be 
reversed,  and  a  new  trial  ordered. 


YEATES  J.  was  prevented  by  sickness  from  being  present 
at  the  argument. 


BRACKENRIDGE  J.  concurred  with  the  Chief  Justice. 

Judgment  reversed. 


MORRISON  and  others  against  SEMPLE  and  anoth 


6b  94, 
9sr446! 
14s r  88 
14s r  98 
14s r  99 
14s r 101 
4r  81 
2wh383 
4ws4I9 
9  142 


249 
511 
25 
331 
130 
188 


IN  ERROR. 


rT^HIS  was  an  ejectment  for  142  acres  136  perches  of 
**•  land  in  AlleSh™y  county,  brought  in  the  name  of  Ed- 
tion  to  pass  the    ward  and  Sarah  Semple  by  their  guardian   William  Jfaus. 

whole  interest  of  ,,  ,         ,    .      .  _   . 

the  devisor,  the  against  Morrison  and  others  the  plaintiffs  in  error  ;  in  which 
a^cTif  thatwas  l^e  ^°^ow'ng  case  was  stated  in  the  nature  of  a  special  ver- 
the  devisor's  diet,  and  judgment  was  without  argument  entered  for  the 

estate  ;  otherwise 
if  the  words  only 


escre  te  oect    evse    ;       e     evsee  w     ten  tae    or     e. 
J?all  ray  real  and  personal  property"  passes  a  fee  in  the  reality. 


OF  PENNSYLVANIA. 


95 


plaintiffs  below,  that  the  cause  might  be  removed  to  this 
Court. 

"  Sa muel  Semple  late  of  Allegheny  county,  deceased,  on 
<c  the  8th  day  of  February  1808,  was  seized  in  his  demesne 
"as  of  fee,  of  and  in  the  tract  of  land  above  mentioned, 
**  with  the  appurtenances  thereunto  belonging ;  and  being  so 
"  thereof  seized  and  possessed,  the  said  Samuel  afterwards, 
'*  to  wit,  the  same  day  and  year  aforesaid,  at  the  county 
"  aforesaid,  made  his  last  will  and  testament  in  writing  in 
"  the  words  following,  viz.  In  the  name  of  God.  Amen.  I 
44  Samuel  Semple  of  Allegheny  county  in  Pennsylvania,  being 
"  of  sound  mind,  do  make  this  my  last  will  and  testament 
*'  in  manner  and  form  following.  I  do  bequeath  and  devise 
44  unto  my  beloved  son-in-law  Steele  Semple,  all  my  real  and 
" personal  property  ;  and  I  do  hereby  constitute  and  appoint 
"  him  the  said  Steele  Semple  sole  executor  of  this  my  last 
"  will  and  testament.  In  witness  whereof  Sec.  Afterwards, 
"  to  wit,  the  10th  of  April  in  the  year  aforesaid,  the  said 
*'  Samuel  Semple  died,  leaving  issue  Juliet  ^  intermarried 
"  with  the  late  Steele  Semple  in  the  said  last  will  and  testa- 
44  ment  mentioned.  The  marriage  of  the  said  Steele  and 
"  Juliet  took  place  before  the  making  of  the  said  last  will 
"  and  testament,  and  both  survived  the  said  Samuel  Semple^ 
44  and  had  issue  two  children  born  alive  previous  to  the 
44  death  of  the  testator,  and  the  making  his  said  last  will. 
"  Sometime  between  the  death  of  the  said  Samuel  Semple^ 
"  and  the  institution  of  this  suit,  the  said  Steele  Semple  and 
"  Juliet  both  died  intestate,  leaving  issue  two  children  Ed' 
"  -ward  and  Sarah  the  plaintiffs  in  this  suit,  both  of  whom 
"are  minors,  and  whose  guardian  is  the  said  William 
44  Hays.  The  said  Steele  Semple  by  a  former  wife  had  two 
44  children,  both  of  whom  are  still  living.  The  defendants 
44  are  in  possession  of  the  land  mentioned  in  the  ejectment, 
44  and  claim  under  a  sale  and  conveyance  in  fee  simple  made 
44  to  them  by  the  said  Steele  Semple  in  his  life  time." 

44  If  the  Court  shall  be  of  opinion  that  the  said  Steele 
44  Semple,  under  the  devise  in  the  said  last  will  and  testa- 
44  ment,  took  an  estate  in  fee  in  the  tract  of  land  aforesaid, 
44  then  judgment  to  be  entered  for  the  defendants.  But  if 
"  under  the  devise  aforesaid  he  took  but  an  estate  for  life, 
"judgment  to  be  entered  for  the  plaintiffs." 


1813. 


MORRISON 
etal. 

•v. 

SEMPLE 
etal. 


96 


CASES  IN  THE  SUPREME  COURT 


1813. 


MORRISON 
et  al. 

v. 

SEMPLE 
etal. 


McDonald  and  Wilkins  for  the  plaintiffs  in  error,  argued 
"that  where  words  of  description  were  used  by  a  testator, 
a  life  estate  passed  j  but  where  he  used  words  denoting  his 
whole  interest,  his  whole  estate  passed :  and  that  the  terms 
all  his  real  property,  particularly  when  connected  with 
terms  embracing  the  personality,  were  the  strongest  that 
could  be  used  to  denote  all  the  testator's  estate,  right,  and 
interest  in  the  premises.  They  cited  2  Black.  Comm.  1. 
16.  198.,  1  Cruise  1,  2.,  Hogan  v.  Jackson  (a),  Blounfs 
Law  Die.  Property,  Bayley^s  Die.  same,  Jacobs'  Die. 
same,  Hopewell  v.  Acton  (£),  Lambert's  Lessee  v.  Paine  (c), 
Kennon  v.  M-Roberts  (*/),  Gut/trie's  Lessee  v.  Guthrie  (e), 
Right  v.  Sidebotham  (/),  Bridgewater  v.  Bolt  on  (g),  Car- 
ter v.  Homer  (A),  1  Ey.  Abr.  176.  pi  7.,  Id.  177.  pi  14., 
Acklandv.  Ackland(i\  1  Eq.  Abr.  177.  pi.  15.,  Nnvkirk  v. 
Nerukirk  (/£),  Tealt  v.  Sadler's  heirs  (7),  Cowper  v.  Cowper 
(w),  Bowes  v.  Blacket  (n),  18  Fm.  73.,  Ding-ley  v.  Dingley 
(0),  Devinisti's  Lessee  v.  Smith  (/»),  French  v.  M'llhenny 
($r),  Lcveacres  v.  Blight  (r),  Davis  v.  Miller  (s),  Coo^  v. 
Gerrard(t),  8  Fin.  199./>/.  1.,  7az//or  v.  ^£6  (M). 

Mountain  contra,  did  not  deny  the  general  principle  for 
which  the  opposite  counsel  contended,  but  argued  that 
" property"  in  this  will  denoted  the  thing  devised,  in  the 
same  manner  as  if  the  devise  had  been  of  all  the  testator's 
lands.  He  cited  and  relied  on  French  v.  M^Ilhenny,  and 
Clayton  v.  Clayton  (v). 

TILGHMAN  C.  J.  Judgment  was  entered  in  this  case,  in 
the  Court  of  Common  Pleas,  without  argument  and  by  con- 
sent, in  order  that  it  might  be  brought  up  for  the  opinion 
of  this  Court.  The  question  is,  whether  an  estate  for  life  or 
in  fee  passed  to  Steele  Semple  by  the  will  of  Samuel  Semple. 
The  will  is  very  short  and  in  the  following  terms :  (Here 
the  Chief  Justice  read  the  will).  The  counsel  for  the  de- 
fendant in  error,  placed  this  case  in  as  strong  a  light  as  it 


o)  Co-top.  304- 

(A)  4  JPfod.  89. 

(/»)  1  Harris  £#  Jfc.  148. 

\b)  1  Salk.  238. 

ft)  2  Fern.  687. 

(7)  2  Ann.  13. 

c)  3  Crunch  128. 

(fc)  2  Came*  351. 

(»•)  Coivp.  352.. 

•d)  1  Wash.  96. 

(?)  1  .Mimf.  537. 

(s)  1  Ca«.  127. 

[e}  1  Ca«.  7. 
/)  Doug.  734. 
[£•)  1  «.  236. 

(w)  2  P.  Wms.  741. 
(?t)  Co-toper,  238. 
(o)  5  JIfass.  535. 

(0  1  Sound.  186. 
(u)  Styles  308. 
(•v)  3  Binn.  476. 

OF  PENNSYLVANIA. 


97 


would  bear,  but  I  have  never  entertained  a  doubt  on  the 
subject.  In  whatever  point  of  view  it  is  considered,  I  per- 
ceive a  plain  intention  with  apt  words  to  pass  a  fee  simple. 
Here  is  a  testator  with  an  only  child,  (a  daughter)  who  had 
a  husband  and  two  children.  He  makes  no  mention  either 
of  child  or  grandchild,  but  speaking  of  his  son-in-law  in 
the  most  affectionate  manner,  he  gives  him  the  whole  of 
his  real  and  personal  property,  and  appoints  him  his  sole 
executor.  What  can  be  concluded  from  this,  but  that  the 
testator  placing  unbounded  confidence  in  the  husband  in- 
tended to  put  every  thing  in  his  power.  It  is  inconceivable 
that  with  any  other  intent,  he  should  have  observed  a  pro- 
found silence  with  respect  to  every  other  human  being.  It 
is  a  singular  instance  of  confidence,  but  does  not  prove  that 
the  testator  had  no  affection  for  his  daughter  or  her  issue. 
It  proves  that  he  was  convinced  of  the  honour  and  integrity 
of  his  son-in-law,  and  to  an  honourable  and  upright  mind 
no  obligation  could  be  stronger  than  that  which  this  will 
imposed.  What  is  its  language  ?  "  I  place  every  thing  that 
*'  is  dear  to  me  in  your  hands.  The  person  and  the  fortune 
"  of  my  child  are  confided  to  you.  I  know  that  you  will 
"  prove  worthy  of  the  trust."  But  it  is  said  that  intention 
alone  is  not  sufficient.  The  heir  is  not  to  be  disinherited 
without  words  sufficient  to  pass  the  estate  to  some  other 
person.  It  is  true  that  we  are  not  permitted  to  guess  at  the 
intention ;  it  must  be  ascertained  from  the  words  of  the  will. 
But  if  it  can  be  so  ascertained  it  shall  be  carried  into  effect. 
No  technical  words  are  necessary  to  pass   a   fee    simple. 
Any  expressions  which  shew  an  intent  to  give  an  absolute 
estate  are  sufficient.  A  devise  of  land    to    one  for    evert 
or,  *'  to  dispose  of  at  his  will  and  pleasure,"  is  a  fee;  be- 
cause there  is  a  manifest  intent  to  give  a  fee.  So  a  devise  of 
one's  estate,  or  of  all  one's  right  or  interest  in  land,  passes 
a  fee  for  the  same  reason.  The  rule  is  this :  Words  which 
only  describe  the  object  devised,  give  no    more    than    an 
estate  for  life ;  but  words  which  comprehend  the  quantum 
of  the  estate,  pass  the  fee.  And  this  rule  is  not  founded  on 
any  artificial  principle,  but  on  the  plain  ground  of  common 
sense  and  fair  construction.  When  a  man  gives  all  his  estate, 
it  is  as  much  as   to  say,  all  the  interest  that  he  has  in  the 
subject  devised.  In  the  present  instance  the  testator  desig- 
Voi.  VI.  N 


1813. 


MORRISON 
etal. 

17. 

SEMPLE 
et  al. 


98 


CASES  IN  THE  SUPREME  COURT 


1813. 


MORRISON 
et  al. 

v. 

SEMPLE 
etal. 


nates  no  particular  object,  but  gives  in  general,  all  his  real 
'  and  personal  property.  I  can  conceive  no  expressions  more 
comprehensive.  The  giving  of  the  real  and  personal  pro- 
perty  by  the  same  words,  shews  an  intent  to  give  the  same 
interest  in  both,  that  is  to  say  an  absolute  interest,  for  no 
man  ever  doubted  that  those  expressions  give  an  absolute 
interest  in  personal  property.  Property  signifies  the  right 
or  interest  which  one  has  in  land  or  chatties.  In  this  sense 
it  is  used  by  the  learned  and  unlearned,  by  men  of  all  ranks 
and  conditions.  We  find  it  so  defined  in  dictionaries,  and  so 
understood  by  the  best  authors.  The  possession  of  land  may 
be  in  one  man,  the  property  in  another.  There  is  a  right  of 
possession,  and  a  right  of  property.  Every  scrivener  who 
draws  a  conveyance,  mentions  not  only  the  land  itself,  but 
also  "  the  right,  title,  interest  and  property  of  the  grantor 
"of,  in,  and  to  the  same."  In  common  conversation  we  say 
that  such  a  house  or  piece  of  land  is  the  property  of  such  a 
person.  When  therefore  a  man  devises  all  his  real  property^ 
he  devises  all  the  right  and  interest  which  he  has  in  any 
lands  or  real  estate.  If  he  has  a  right  in  fee  simple  a  fee 
passes,  otherwise  the  will  is  not  complied  with ;  for  if  the 
devisee  takes  but  an  estate  for  life,  he  does  not  take  all  but 
only  part  of  the  devisors  property.  Many  cases  were  cited 
on  the  argument.  I  think  it  unnecessary  to  take  particular 
notice  of  any  of  them.  It  is  a  principle  undeniable,  that  when 
the  words  of  a  will  indicate  an  intention  to  pass  the  whole 
interest  of  the  devisor,  the  devisee  shall  take  a  fee.  Being 
clearly  of  opinion  that  such  an  intention  is  indicated  by  the 
expressions  of  this  will,  it  follows  that  Steele  Semple  took 
an  estate  in  fee  in  all  the  real  estate  of  Samuel  Semple.  The 
judgment  of  the  Court  of  Common  Pleas  must  therefore 
be  reversed,  and  judgment  entered  for  the  plaintiffs  in  error. 

YEATES  J.  absent  in  consequence  of  sickness. 
BRACKENRIDGE  J.  concurred  with  the  Chief  Justice. 


Judgment  reversed. 


OF  PENNSYLVANIA.  99 

C  A  H  i  L  L  against  B  E  N  N  and  others.  * 

«* 


j    6b    99 

IN  ERROR. 

Pittsburg, 


was  an  ejectment  in  the  Common  Pleas  of  Indiana  scomber  is. 
•*•     county,  in  which  the  attorney  of  Benn  and  others,  the    Verdict  for  the 
plaintiffs,  below,  in  his  Prcedpe  for  the  summons,  particu-court'be'iow.'6 
larly  described  the   land   in   controversy  ;    the   defendant  ^'^which6* 
pleaded  the  statute  plea  of  not  guilty,  and  on  this  issue  the  judges  were 

...  ....  ,    ~.         ,      equally  divided. 

the  cause  went  to  trial.     A  verdict  being  entered  tor  the  Afterwards  mo- 
plaintiffs,  the  defendant  moved  for  a  new  trial  ;  and   the  fo^'pStTfr,"* 
Court  being  equally  divided,  the  motion  was   held  under  two  judges  being 
advisement.     Afterwards  the  plaintiffs'  counsel  moved  for  ordered  judgment 


judgment,  and  two  judges  being  present,  one  ordered  judg- 

ment  as  a  matter  of  course,  and  the  other  objected  to  the  the  entry,  where- 

_,,  ,  .    .     ,  .  .      upon  the  clerk 

entry.     Ihe  prothonotary  entered  judgment;  and  on  the  entered  judg- 

same  day,  the  14th  of  June  1813,  execution  was  issued.  ^ 

On  the  same  day,  likewise,  a  recognizance  to  prosecute  a.H?ment,  this 

.         P  ,    .  111  i      Court  presuming 

writ  of  error  was  entered  into,  and  made  known  to  the  that  the  dissent- 
plaintiffs  ;  and  on  the  15th  of  June  about  10,  A.  M.  the  in*  Judse  ™^~ 

f  J  ed  merely  to 

writ  of  error  issued.  At  12,  at  noon  of  the  15th,  possession  enter  his  dissent 
was  delivered  under  the  haberc,  and  on  the  16th  about  and  no[to°arrest 
sunset,  the  writ  of  error  was  shewn  to  the  Court  of  Com-^f1'^"131'60"^ 

1  ot  law,  by  prohi- 

mon  Pleas,  and  the  sheriff.  The  attorneys  subsequently  hiting  the  protho- 
agreed  to  abide  by  the  opinion  of  Mr.  Ross,  upon  the  ques-^ak^g  proper 
lion  whether  restitution  ought  to  be  made  ;  and  his  opinion  enAry- 

Was  in  faVOUr  of   restitution.  attornies  in  the 

Court  below,  to 
abide  by  the  opi- 

The  points  made  in  this  Court  by  A.  W.  Foster  for  then.ion  ?fa  P|'ofes- 

.  *  .  f     s.onal  gentleman, 

plaintiff  in  error,  were  :  1.  That  there  was  no  judgment  in  upon  the  question 
the  Court  below.  2.  That  restitution  should  be  ordered,  as  tiolf  of  the"re-U 
well  on  the  ground  of  law,  that  the  writ  of  error  was  amises  shoukl  be 

0  f  made  to  the 

supersedeas  to  the  execution,  as  on  the  ground  of  the  agree-  plaintiff  in  error 
ment  below,  and  Mr.  Ross's  opinion.  3.  That  there  was  h°rbeen°uikeay 
error  in  the  omission  of  the  plaintiffs  to  file  a  description  of  >>yaAa£er<? 

facias,  enforced 

the  land,  on  or  before  the  first  day  of  the   term  to  which  by  the  court  of 
the  writ  was  returnable,  according  to  the  sixth  section  of  erjfThe/^<f«^« 

the  act  Of  21st  March    1806.  for  a  summons 

in  ejectment, 
particularly  de- 

Baldwin  for  the  defendants  in  error.  scribes  the  land 

in  controversy, 

it  is  not  necessary  for  the  plaintiff*  to  file  another  description  of  the  land,  according  to  the  sixth  sec- 
tion of  the  act  of  21st  March  180C. 


100 


CASES  IN  THE  SUPREME  COURT 


1813. 


CAHILL 

v. 

IJKXV 
et  al. 


On  the  first  point,  the  Chief  Justice  delivered  the  opi- 
nion of  the  Court  as  follows : 

TILGHMAN  C.  J.  At  first  view  of  this  record  there  seems 
some  difficulty  in  saying  whether  a  judgment  has  been  en- 
tered or  not.  There  were  but  two  judges  in  Court.  One 
directed  the  entry  of  the  judgment,  the  other  objected  to  it, 
but  judgment  was  entered.  In  order  to  understand  the 
meaning  of  this,  it  is  necessary  to  consider  the  matter  con- 
cerning which  the  Court  differed.  There  had  been  a  verdict 
for  the  plaintiffs,  and  a  motion  for  a  new  trial,  which  was 
argued  and  held  under  advisement.  It  does  not  appear  that 
any  opinion  was  expressly  given  on  this  motion,  but  after- 
wards when  the  Court  was  moved  for  judgment,  the  judges 
were  equally  divided.  There  was  no  point  on  which  they 
could  differ,  ^ut  on  the  motion  for  a  new  trial.  It  appears  to 
us  therefore  that  when  Judge  Campbell  dissented  from  the 
direction  of  his  brother  judge  to  enter  the  judgment,  it  is 
to  be  considered  as  no  more  than  an  -expression  of  his  opi- 
nion that  the  verdict  ought  to  be  set  aside.  The  Court 
being  equally  divided  on  this  point,  judgment  ought  to 
have  been  entered.  We  cannot  suppose  that  Judge  Campbell 
meant  to  act  with  such  impropriety  as  to  arrest  the  regular 
course  of  law,  by  forbidding  the  prothonotary  to  make  a 
proper  entry.  We  rather  think,  that  he  wished  his  opinion 
against  the  verdict  to  be  entered  on  the  record,  and  to  leave 
the  rest  to  the  law.  Any  other  proceeding  would  have  been 
highly  improper,  and  we  will  not  without  necessity,  suppose 
that  Judge  Campbell  intended  to  do  what  was  wrong.  Un- 
doubtedly a  judgment  is  the  act  of  the  Court,  and  the 
prothonotary  is  no  more  than  their  agent  in  entering  it.  But 
under  all  the  circumstances  of  this  case,  we  understand  that 
there  was  a  verdict  for  the  plaintiffs,  and  a  difference  be- 
tween the  judges  concerning  a  new  trial,  and  a  judgment 
entered  for  the  plaintiffs  in  consequence  of  the  Court's  being 
equally  divided.  It  is  unfortunate  that  our  records  are  not 
made  up  with  more  precision.  But  in  the  state  in  which 
they  are  often  presented  to  us,  we  consider  it  as  our  duty 
to  construe  them  with  the  greatest  liberality,  and  in  such 
manner  as  will  effectuate  the  true  meaning  without  regard 
to  form. 


OF  PENNSYLVANIA. 

On  the  point  of  restitution,  the  Court  were  of  opinion 
that  the  agreement  of  the  attornies  below  should  be  en-" 
forced ;  but  gave  no  opinion  upon  the  question  of  law,  from 
what  a  time  a  writ  of  error  is  a  supersedeas.  Vid.  Stat.  3 
Jac.  c.  8.,  2  Bac.  Abr.  4,77.  Error  If.,  Tidd's  Prac.  1068, 
1070,  2.,  Act  of  llth  Mar.  1809.  Purd.  134. 

On  the  last  point  the  Chief  Justice  delivered  the  follow- 
ing opinion. 

TILGHMAN  C.  J.  The  error  assigned  in  this  case  is,  that 
the  plaintiffs  did  not  file  a  description  of  the  land  for  which 
the  suit  is  brought,  agreeably  to  the  provision  of  the  act  of 
the  21st  of  March  1806.  It  appears  by  the  record,  that  the 
plaintiffs  before  the  issuing  of  the  writ,  filed  a  prcecipe,  in 
which  was  contained  a  sufficient  description  of  the  land,  and 
that  the  defendant  pleaded  not  guilty,  on  which  issue  was 
joined.  It  is  a  captious  objection,  because  the  defendant  was 
fully  apprized  of  the  plaintiffs'  claim.  The  defendant's  coun- 
sel insist  that  the  act  of  assembly  has  introduced  a  new  pro- 
ceeding in  case  of  ejectment,  which  must  be  strictly  com, 
plied  with.  Let  us  examine  the  act  then.  The  object  of  the 
legislature  was  to  simplify  the  action  of  ejectment,  which 
before,  though  well  understood  by  lawyers,  was  founded  in 
fiction,  and  incomprehensible  by  any  but  professional  men. 
In  the  first  place  a  form  of  writ  is  prescribed,  in  which  the 
land  is  described ;  after  which  it  is  added  as  follows,  "  the 
"  right  of  possession  or  title  to  which  he  the  said  plaintiff 
"  sr.ith  is  in  him,  and  not  in  the  said  defendant,  all  which 
"  the  said  plaintiff  averreth  he  is  prepared  to  prove  &c."  It 
is  directed  in  a  subsequent  part  of  the  act,  that  "  it  shall  be 
"  the  duty  of  the  plaintiff  to  file  in  the  office  of  the  protho- 
"  notary,  on  or  before  the  first  day  of  the  term  to  which  the 
"  writ  is  returnable,  a  description  of  the  land,  together  with 
"  the  number  of  acres  which  he  claims,  and  declares  that  the 
"  title  is  in  him,  and  the  defendant  shall  enter  his  defence, 
u  (if  any  he  hath)  for  the  whole  or  any  part  thereof,  before 
u  the  next  term,  and  thereupon  issue  shall  be  joined."  By  a 
supplement  passed  13th  April  1807,  it  is  enacted  that  the 
plea  of  the  defendant  shall  be  "  not  guilty."  Now  in  this 
case,  the  pracipe  of  the  plaintiffs  filed  before  the  issuing  of 


101 


1813. 


CAHILL 

v. 

BENN 
etal. 


102 


CASES  IN  THE  SUPREME  COURT 


1813. 


CAHILL 

v. 

BENN 
et  al. 


the  writ,  did  contain  such  a  description  as  the  law  requires, 
what  more  then  is  wanted  ?  Why  says  the  defendant  it  is  not 
alleged  in  the  prxc'ipe  that  the  plaintiff  claims  the  land  and 
declares  that  the  title  is  in  him.  And  where  was  the  occa- 
sion when  this  was  averred  in  the  writ?  At  first  reading  of 
the  sixth  section  I  thought  that  although  unnecessary,  the 
law  did  require  it ;  but  upon  considering  it  critically  I  find 
that  it  is  not  so.  He  is  to  file  a  description  of  the  land  which 
he  claims  and  declares  that  the  title  is  in  him  ;  but  he  is  not 
to  say  in  that  paper,  that  he  does  so  claim  and  declare  &c. 
because  that  is  done  in  the  writ ;  in  other  words  he  is  to  file 
a  description  of  the  land  which  in  the  writ  he  claims  and 
declares  the  title  to  be  in  him.  This  is  the  construction  of 
the  plaintiff's  counsel,  and  I  agree  with  him.  1'he  words 
will  well  bear  it,  and  it  is  not  pretended  that  there  is  the 
least  use  in  making  the  averment  again,  which  is  made  in 
the  writ.  I  am  therefore  of  opinion  that  the  judgment  should 
be  affirmed. 

YEATES  J.  absent  in  consequence  of  sickness. 


BRACKENRIDGE  J.  of  the  same  opinion  with  the  Chief 
Justice. 

Judgment  affirmed 


SMITH  and  another,  Executors  of  HUTCHINSON 
against  EVANS. 

IN  ERROR, 
to  the  Common  Pleas  of  Indiana  county. 


Pittsburg, 
JHonday, 
September  13. 
The  plaintiff 
sold  to  the  de- 
fendant "  three        The  case  below  was  scire  facias  upon  a  mortgage  given 
"tracts  of  land  __  J 

'containing ninety  John  Hutchmson  the  testator  to  Cadtvalader  Evans,  on 

f  hundred  ninety- 

'  one  acres  and  a  quarter,  and  allowance,  at  twelve  shillings  and  sixpence  per  acre."  The  plain- 
iff  aftei  wards  obtained  patents  in  his  own  name,  and  executed  a  conveyance  of  the  tracts  to  tlte 
defendant,  describing  them  by  courses  and  distances  according  to  the  patents,  and  stating  them  as 
«  containing  in  the  whole  nine  hundred  ninety-one  acres  and  a  quarter,  and  allowance  &c.  be 
'  the  same  more  or  less"  The  defendant  having  previously  paid  a  part  of  the  purchase  money, 
gave  his  bonds  to  the  plaintiff  on  the  day  after  the  conveyance,  for  the  sum  remaining  due,  with  a 
mortgage  on  the  three  tracts,  stating  them  to  contain  "  in  the  whole  nine  hundred  ninety-one  acres 
"and  a  quarter,  and  allowance,"  and  describing  them  by  courses  and  distances.  Upon  a  survey 
made  twelve  years  afterwards  the  tracts  -were  ascertained  to  fall  short  88  acres  48  perches.  Held, 
that  the  defendant  was  not  entitled  to  any  deduction  from  his  bonds,  on  account  of  the  deficiency. 

Quce re  :  How  the  law  would  have  been,  if  the  case  had  stood  on  the  original  agreement,  without 
the  subsequent  acceptance  of  the  deed,  and  the  mortgage. 


6b  102 
6sr489 
13s r 162 
2pw218 
2pw535 
2pw538 
2w320 
4w407 
6w]17 
9w269 
Iws444 
7ws358 
131 
132 
256 
167 
195 
62 
63 


OF  PENNSYLVANIA.  103 

the  24th  of  March  1798,  of  three  certain  adjoining  tracts  1813. 
of  land,  forming  one  large  tract  in  Indiana  county,  stated  SMITH 
to  contain  in  the  whole  991$  acres  and  allowance,  described  v. 

by  courses  and  distances  ;  and  with  a  proviso  to  be  void  on       EVANS. 
the  payment  of  two  bonds,  of  the  same  date  with  the  mort-    If  the       uty 
irace.  one  conditioned  for  the  payment  of  169/.  2*.  9d.  on  the  Mi  short,  where 

,     .  ,     ,  -      the  conveyance  is 

7th  of  June  1 798,  with  one  year's  interest,  and  the  other  for  for  a  gr0ss  sum, 
the  payment  of  the  like  sum  one  the  7th  oljune  1799,  with  ™J  ^2,™ 
two  years'  interest.  which  truly  de- 

The  defendants  pleaded  payment  with  leave  to  give  the ^1^ therecan 
special  matter  in  evidence;  and  on  issue  being  joined,  the f^^the^u^011 
following  case  was  stated,  under  which  the  cause  was  de-  chase  money, 

..,..._,  ..  »       •     "  i  iii        unless  there  has 

cided  m  this  Court,  a  judgment  having  been  entered  below  been  fraud. 
by  consent  and  without  prejudice,  for  the  whole  sum  claim-  th^^rfs  ^ re 
ed  by  the  plaintiff.  »  *>•»<* is  «>ld  a* 

so  much  per  acre, 
and  there  is  a 

"It  is  agreed  that  the  following  are  the  facts   in  this<le^antcjxcessor 
*'  cause,  and  that  they  shall  be  considered  by  the  Court  in  deficiency  may  be 

„    .  -  .   ,  ,.    .  intended  by 

"  the  nature  or  a  special  verdict.  «  more  or  ie8S,»» 

"  The  mortgage  recited  in  the  scire  facias  was  duly  exe- 
"  cuted  and  delivered  by  the  said  John  Hutchinson  on 
44  24th  March  1798. 

"  The  original  contract  on  which  the  said  mortgage  was 
"  given  is  as  follows  :  Cadwalader  Evans,  the  plaintiff,  on 
"27th  May  1797,  sold  to  the  said  John  Hutchinson  three 
"  tracts  of  land  mentioned  in  the  writing  of  that  date,  as 
"  containing  991  \  acres  and  allowance,  at  twelve  shillings 
"  and  six  pence  per  acre,  to  be  paid  as  therein  stated ;  prout 
"  said  writing,  No.  1. 

w  On  22d  June  the  said  C.  Evans  gave  a  receipt  for  63/. 
"  15*.  part  of  the  purchase  money  for  said  land,  stating  the 
"  contract  and  the  terms  thereof;  prout  said  receipt,  No.  2. 

"  By  various  other  receipts  herewith  shewn,  the  whole 
"  amount  of  the  said  purchase  money  and  interest,  except 
"  442  dollars  and  7  cents,  has  been  paid  to  plaintiff. 

"  On  1st  March  1798,  a  patent  was  granted  to  C\  Evans  for 
"  one  of  the  said  tracts  of  land,  warranted  to  John  Ashmead, 
11  as  containing  345  §  acres,  and  a  patent  for  the  tract  war- 
"  ranted  to  Benjamin  Mifflin  as  containing  3183  acres. 

"  On  8th  March  1798,  a  patent  was  granted  to  the  said 
"  Evans  for  the  tract  warranted  to  Joseph  Mifflin  as  con- 
"  taining  327£  acres. 


104 


CASES  IN  THE  SUPREME  COURT 


1813.        "On  23d  March   1798,  Cadwalader  Evans  by  indenture, 
SMITH       "  reciting  sa^  patents,  conveyed  to   John   Hutchinson  the 
v.  "  said  three  tracts  of  land  for  the  consideration  of  619/.  10*. 

EVANS.       «  6^.,  prout  extract  of  said  indenture,  No.  3. 

"  On  31st  May  181O,  the  lines  of  the  said  three  tracts  of 
44  land  were  traced  and  measured  by  Alexander  Taylor 
"  under  a  rule  of  Court,  and  found  to  contain  903  acres  and 
41  one  tenth,  being  88  acres  and  48  perches  less  than  the 
**  number  of  acres  mentioned  in  the  indenture. 

44  If  upon  the  whole  matter,  and  the  writings  above  set 
44  forth,  the  Court  are  of  opinion  that  the  defendants  are 
41  bound  to  pay  the  full  amount  of  the  consideration  money 
41  mentioned  therein,  then  judgment  to  be  entered  for  the 
41  plaintiff  for  442  dollars  7  cents,  with  interest  from  10th 
"September  1811. 

"  But  if  the  Court  are  of  opinion  the  defendants  ought 
44  not  to  pay  for  more  land  than  is  found  to  be  within  the 
44  lines  of  said  surveys,  at  the  rate  of  twelve  shillings  and 
*4  six  pence  per  acre,  then  judgment  to  be  entered  for  the 
*4  plaintiff  for  152  dollars  91  cents,  with  interest  from  10th 
"September  1811. 

44  And  it  is  agreed  that  either  party  may  take  a  writ  of 
"  error  without  prejudice, 
no  ,Tli}r;ifiJkf  srft  ,?tv 

No.  1. 

fr.*.'  John  Hutchinson 

"1797,  To  Cadwalader  Evans     -     -     Dr. 

44  Mayy  To  three  tracts  of  land  on  the  waters  of 
Black  Legs  Creek,  containing  99H 
acres  and  allowance,  sold  him  at  twelve 
shillings  and  six  pence  per  acre,    -    £  619  10  6 
%  to  be  paid  down     -     -     -     3091532 
i  in  one  year  with  interest       154  17  7i 
i  in  two  years  with  interest     154  17  7$ 

£619  10  7 
"  1797, 
"  June  7th,  Received  of  John  Hutchinson  by  the 

hands  of  William  Finley  Esq.       -     -     63  15 
To  be  paid  in  April  1798,  £80  dollars.     217  10 

£281     5 


OF  PENNSYLVANIA. 


105 


Whole  purchase  money  619  1O  6 
281     5 


1813. 


£  338     56 

to  be  paid  7th  June  1798,     169  2 
July  1799,     169  2 


£3385  7 
No.  2. 

Received  June  22d  1797,  of  John  Hutchinson  by  the 
hands  of  William  Findley,  Esq.  sixty-three  pounds  fifteen 
shillings,  which  is  to  be  considered  as  part  of  the  purchase 
money  to  be  paid  me  by  the  said  Hutchinson^  for  three 
tracts  of  land  on  Black  Legs  creek  in  Westmoreland  county, 
surveyed  on  warrants  to  John  Ashmead,  Joseph  Mifflin 
and  Benjamin  Mifflin  in  1773,  containing  in  the  whole  nine 
hundred  and  eighty-one  acres  and  one  tenth  of  an  acre,  and 
the  usual  allowance,  at  twelve  shillings  and  six  pence  per 
acre,  provided  he  pays  me  so  much  within  two  months 
after  the  date  hereof,  as  with  the  sum  now  received,  shall 
amount  to  one  half  the  whole  puchase  money  at  the  above 
price  ;  and  as  soon  as  I  make  him  a  title  in  fee  for  the  said 
land,  shall  execute  to  me  bonds  and  warrants  of  attorney 
with  mortgage  on  said  land,  for  the  remaining  half,  payable 
with  interest,  one  half  thereof  in  one  year,  and  the  residue 
in  two  years  from  the  27th  of  May  now  last  past. 
£63  15  CADW:  EVANS,  attorney  in  fact  for 

Mathew  Irwin,  surviving  partner  of 
Witness,  the  late  house  of  Mifflin  and  Irwin 

Andrew  Gregg*  in  Philadelphia. 

No.  3. 

Indenture,  Cadwalader  Evans  to  John  Hutchinson,  dated 
23d  March  1798,  selling  the  three  tracts  of  land  in  conside- 
ration of  619/.  10«.  6</.,  reciting  the  courses  and  distances 
in  the  several  patents,  and  the  number  of  acres  mentioned 
in  each  ;  and  proceeding  thus,  "  doth  grant,  bargain  and  sell, 
*'  alien,  enfeoff,  release  and  confirm  unto  the  said  John 
"  Hutchinson^  his  heirs  and  assigns,  all  those  three  tracts  of 
"  land  above  described,  containing  in  the  whole  nine  hun- 
"  dred  and  ninety-one  acres  and  a  quarter,  and  allowance  of 
"  six  per  cent,  for  roads,  &c.  be  the  same  more  or  less" 
with  a  covenant  against  incumbrances  *  done  or  suffered 
a  by  the  grantor." 

VOL.  VI.  O 


SMITH 

•v. 
EVANS. 


106  CASES  IN  THE  SUPREME  COURT. 

1813.  Alexander  for  the  plaintiffs  in  error,  contended  that  they 


were  entitled    to  an   allowance   for  the  deficiency,  on  the 
v.  authority  of  Clute  v.  Robison  (a),  Sugden  200.,  Finch.  80., 

EVAKS.      2  Cha.  Ca.  195. 

Forward  contra,  relied  upon  Boydv.  Bopst  (£),  Sherwood 
v.  Salmon  (c),  Bayly  v.  Merrel  (d),  1  Pow.  on  Cont.  238. 
423.,  Russelv.  Gulwel  (e),  Mann  v.  Pearson  (/), 
gins'  s  case 


TILGHMAN  C.  J.  It  apears  by  a  receipt  from  C.  Evans 
to  John  Hutchinson^  deceased,  for  63/.  15s.  dated  22d  'June 

1797,  that  the  former  had  sold    to   the  latter  three  tracts  of 
land,  surveyed  but  not  patented,  containing  981  \  acres  and 
the  usual  allowance  at  12-s.  6d.  an  acre  ;  one  half  to  be  paid 
within  two  months  from  the  date  of  the  receipt,  and  as 
soon  as  Evans  should  make  Hutchinson  a  legal  title  to  the 
said  lands  in  fee,  Hutchinson  was  to  give  him  bonds  with 
warrant  of  attorney  to  confess  judgment,  and  also  a  mort- 
gage on  the  said  lands  for  the  remainder  of  the  purchase 
money,  with  interest,  one  half  to  be  paid  in  one  year,  and 
the  other  half  in  two  years  from  the  27th  of  May  1797.  On 
the  1st  and  8th  of  March  1798,  Evans  obtained  patents  for 
the  said  three  tracts  in  his  own  name,  and  executed  a  con- 
veyance of  them  to  Hutchinson  in  fee  on  the  23d  of  March 

1798.  In  this  conveyance  they  were  described  by  courses 
and  distances  &c.,  according  to  the  patents,  and  were  said 
to  contain  991  i  acres  and  allowance  of  six  percent,  for  roads 
&c.,  be  the  same  more  or  less.     On  the  24th  of  March  1798, 
Hutchinson  gave  his  bonds  to  Evans  for  the  balance  of  the 
purchase  money  then  remaining  due,  with  a  mortgage  on 
the  said  three  tracts  of  land,  said  to  contain  991  \  acres,  and 
described  by  courses  and  distances.  It  has  been  ascertained 
by  a  survey,  made  31st  March  1810,  that  the  quantity  con- 
tained in  the  three  tracts,  falls  short  of  99  li  acres,  by  the 
quantity  of  88  acres  and  48   perches,  and  the  question  is, 
whether  the    defendant   shall  have   an  allowance  for   that 
quantity  at  the  rate  of  12*.  6d.  an  acre. 

(<0  2  Johns,  613.  (rf)  Cro.  Jac.  387-  (/).  $  John*.  37. 

(ft)  2  Da/l.  91.  (e)  Cro.  Eli;.  657.  {#)  6  Co.  45. 

(c)  2  Day.  K8, 


OF  PENNSYLVANIA.  107 

There  is  no  doubt  but  the  parties  at  the  time  of  making  1813. 
the  contract,  took  for  granted  that  the  three  tracts  contained  SMITH 
991  i  acres,  and  fixed  the  total  price  on  an  estimate  of  that  v- 

quantity  at  12*.  6d.  an  acre.  But  whether  that  quantity 
was  an  essential  part  of  the  agreement,  or  only  descrip- 
tive, is  not  so  clear,  because  both  parties  knew  that  the 
lands  had  been  officially  surveyed,  the  agreement  had  refer- 
ence to  that  survey,  and  no  provision  was  made  for  another 
survey.  I  give  no  opinion  however  on  the  case  as  it  would 
have  stood  on  the  contract  expressed  in  the  receipt,  unat- 
tended with  any  other  acts  showing  the  intent  of  the  par- 
ties, because  my  opinion  is  founded  in  part  on  other  acts. 
If  Hutchinson  had  supposed,  that  he  was  to  pay  for  the 
quantity  of  land  whether  it  was  more  or  less  than  991^ 
acres,  he  should  have  taken  some  steps  to  have  it  ascer- 
tained. On  the  contrary  he  did  nothing,  but  suffered  Evans 
to  proceed  to  obtain  patents  and  execute  a  conveyance  of 
the  whole  to  him,  by  courses  and  distances,  whether  the 
same  should  be  more  or  less.  By  accepting  this  deed  and 
executing  a  mortgage,  it  appears  to  me,  that  the  agreement, 
so  far  as  concerned  the  quantity,  was  closed,  both  parties 
consenting  to  estimate  it  at  991^  acres.  Had  there  been  a 
surplus,  it  is  not  pretended  that  Evans  was  to  have  received 
any  thing  for  it.  Can  it  be  supposed  then,  that  he  consented 
to  so  unequal  a  contract,  as  to  make  good  a  deficiency  with- 
out receiving  any  compensation  in  case  of  surplus  ?  It  is 
well  enough  known  that  original  surveys  generally  contain 
more  than  the  estimated  quantity.  To  take  the  quantity 
upon  the  estimate  then  is  in  favour  of  the  purchaser,  and 
such  I  conceive  to  have  been  the  real  intent  of  the  parties 
manifested  by  all  their  acts  considered  together.  The  case 
of  Mann  and  Tales  v.  Pearson,  in  the  Supreme  Court  of 
New  York,  (2  Johns.  37.)  is  somewhat  similar  to  the  pre- 
sent, but  much  stronger.  There  the  defendant  had  promised 
to  grant  and  convey  to  the  plaintiffs,  "  lot  No.  78  in  the 
"  township  of  Lysander  containing  600  acres"  The  defen- 
dant did  convey  to  the  plaintiffs  the  lot,  describing  it  as 
containing  600  acres  more  or  less.  It  was  held,  that  this 
was  a  performance  of  the  agreement,  although  it  turned 
out  that  the  quantity  was  but  421  j  acres.  What  weighed 
much  with  the  Court  was,  that  upon  the  construction  contend- 
ed for  by  the  grantee,  he  might  get  more,  but  could  not  get 


108  CASES  IN  THE  SUPREME  COURT 

1813.        less  than  600  acres  which  is  too  unreasonable  to  be  supported 

SMITH       unless  clearly  expressed.    I  am  of  opinion  that  Hutchtnson 

•v.  was  bound  to  pay  the  whole  sum  mentioned  in  his  bonds 

EVANS.      and  mortgage,  and  therefore  that  the  judgment  should  be 

affirmed. 

YEATES  J.  I  am  so  unfortunate  as  to  differ  in  opinion 
from  my  brothers  in  this  case.  I  have  revolved  the  matter 
in  my  mind  as  carefully  as  it  was  in  my  power  to  do,  and 
on  the  fullest  reflection  can  see  no  reason  for  changing  the 
sentiments  which  I  had  formed  after  hearing  the  argument. 
It  becomes  therefore  my  duty  to  declare  openly  the  reasons 
of  my  dissent. 

The  question  submitted  to  the  Court  is,  whether  under 
all  the  circumstances  of  the  case  as  stated,  the  executors  of 
Hutchinson  ought  to  be  allowed  a  credit  upon  the  mortgage 
for  the  88  acres  and  48  perches  of  land,  really  deficient  of 
the  quantity  agreed  to  be  sold  ?  We  are  not  called  upon  to 
decide,  whether  if  the  principal  and  interest  secured  by  the 
mortgage  had  been  fully  discharged,  the  executors  would 
have  any  legal  remedy  for  the  supposed  loss  of  quantity. 

It  is  not  denied  that  in  a  suit  on  a  bond  or  mortgage,  the 
want  of  consideration  may  be  shewn  on  the  part  of  the  de- 
fendant. It  is  matter  of  daily  practice  to  give  such  evidence, 
either  to  avoid  the  whole  or  part  of  the  sum  demanded,  on 
the  plea  of  payment,  upon  giving  notice  of  the  special  mat- 
ter intended  to  be  insisted  on,  in  order  to  prevent  surprize. 

The  case  before  us  naturally  divides  itself  into  two 
heads :  1.  What  was  the  original  contract,  and  its  legal 
operation  ?  2.  Has  it  been  changed  or  modified  by  any  sub- 
sequent act  ? 

1.  The  nature  of  the  contract  is  as  precisely  ascertained 
as  could  possibly  be  done  by  any  words  in  the  English  lan- 
guage, by  two  receipts  specially  penned  and  subscribed  by 
the  vendor  himself.  The  first  paper  states  a  sale  of  three 
tracts  of  land  on  the  waters  of  Black  Legs  creek  containing 
991i  acres  at  12*.  &d.  per  acre,  carrying  out  the  amount  619/. 
1O*.  6d.  and  the  times  of  payment,  and  acknowledges  that  63/. 
15*.  had  been  paid  thereon  upon  the  7th  of  June  1797.  The 
second  paper  also  states  the  sale  at  12*.  6d.  per  acre,  and 
the  time  of  payment,  calling  the  quantity  sold  991i  acres ; 


OF  PENNSYLVANIA. 


109 


but  it  also  mentions  the  warrants  on  which  the  lands  were 
surveyed,  and  the  contents  of  the  different  surveys  are  ex-" 
pressed  in  the  case,  amounting  to  991  i  acres.  It  follows 
therefore  that  the  quantity  was  mistaken  in  this  receipt  for 
63/.  15*.  dated  June  22d  1797,  and  if  any  doubt  could  re- 
main, it  would  be  fully  obviated  by  the  words  of  the  con- 
veyance and  mortgage,  which  respectively  denominate  the 
contents  as  991  i  acres.  Articles  of  agreement  with  the  so- 
lemnity of  seals  could  not  have  rendered  the  contract  more 
certain.  It  began  in  May  1 797,  but  the  deed  and  mortgage 
were  not  executed  until  March  1798.  Twelve  years  after- 
wards the  fact  was  verified,  that  the  true  area  of  the  lands 
sold  was  903T^  acres,  leaving  a  deficiency  of  88  acres,  48 
perches.  It  is  not  however  denied,  that  in  the  first  instance 
the  object  of  the  contracting  parties  was  that  the  one  should 
sell  and  the  other  should  buy  991  i  acres.  Whether  the 
error  arose  from  a  mistake  in  the  admeasurement  of  the 
lines,  or  from  incorrectness  in  the  calculation,  we  are  not 
informed,  but  no  fraud  or  deceit  in  the  transaction,  has 
been  imputed  to  the  vendor.  I  fully  agree  that  where  there 
has  been  a  conveyance  of  lands  by  courses  and  distances, 
which  truly  describe  the  premises,  for  a  gross  sum,  but  the 
quantity  expressed  to  have  been  transferred  proves  defi- 
cient, and  there  is  no  express  covenant  insuring  such  quan- 
tity, the  vendee  cannot  without  othtr  proof  recover  damages 
against  the  vendor.  Such  was  the  resolution  of  this  Court 
in  Dagne  v.  King,  et  uxor,  in  January  term  1794,  which 
has  obtained  in  other  cases  in  this  state.  Under  such  cir- 
cumstances the  seller  could  obtain  no  satisfaction  for  the 
surplus  quantity,  and  the  buyer  should  be  in  no  better  si- 
tuation, where  there  happens  a  deficiency.  The  same  prin- 
ciple may  be  extracted  from  other  decisions  in  our  sister 
states,  as  in  Mann  and  Teles  v.  Pearson,  2  Johns.  37,  and 
in  Jackson,  Lessee  of  Staring  v.  Difendorf,  1  Catnes  493,  in 
Massachusetts,  in  Howe  et  al.  v.  Bass.  2  Tyng  383,  and 
in  Powell  v.  Clarke,  5  Tyng  355,  and  in  Connecticut,  in 
Snow  v.  Chapman,  1  Root  528.  Fraud  and  circumvention  on 
the  part  of  the  vendors  have  always  been  held  to  form  ex- 
ceptions from  the  general  rule,  but  nothing  of  that  kind  is 
imputed  here.  I  take  the  law  to  be  equally  clear  that  where 
lands  are  sold  at  so  much  per  acre,  and  there  is  a  deficiency 


1813. 


SMITH 

v. 
EVANS. 


HO  CASES  IN  THE  SUPREME  COURT 

1813.        in  the  number  conveyed,  the  purchaser  will  be  entitled  to  a 
""" compensation     although  the  estate  was  estimated  at   that 


v.  number  in  an  old  survey.    Sir  Cloudsley  Shovel  v.  Bogan,  2 

EVANS.  Equ.  Abr.  988.,  Sttgderi's  Law  of  Vendors  201 .  Fair  contracts 
accompanied  with  due  legal  forms  are  equally  obligatory  in 
good  morals  as  well  as  law,  whether  they  respect  realty  or 
personalty  ;  and  I  can  see  no  solid  distinction  in  reason  or 
justice  between  a  vendee  of  lands  by  the  acre,  being  obliged 
to  pay  his  money  for  a  larger  quantity  of  lands  than  he  can 
procure  under  his  contract,  and  the  purchaser  of  three 
boxes  of  linens  containing  so  many  yards  at  one  dollar  per 
yard,  obtaining  credit  on  his  bond  for  a  deficiency  in  the 
quantity  of  yards  contained  in  the  boxes.  It  has  been  strong- 
ly urged,  that  there  would  be  a  want  of  reciprocity  in  this 
instance,  if  the  vendee  could  recover  for  a  deficiency  in  the 
land,  and  the  vendor  could  have  no  compensation  in  the  case 
of  an  excess.  To  this  observation  I  have  several  answers.  It 
is  the  fault  of  the  vendor  if  he  has  made  an  improvident  bar- 
gain. It  has  frequently  occurred  that  a  vendee  of  lands  has 
legally  withstood  the  payment  of  the  full  amount  of  his 
bonds,  where  for  part  of  the  lands  sold  no  good  title  could 
be  conveyed  to  him,  and  yet  the  same  vendee  having  paid 
the  full  consideration  money,  would  have  no  right  of  action 
to  recover  back  such  part  of  the  money  as  was  proportioned 
to  the  lands,  for  which  the  title  was  defective,  by  reason 
of  the  covenants  on  the  part  of  the  vendor  not  being  suf- 
ficiently extensive.  Besides  if  we  may  trust  to  Sugden  (p. 
202)  a  court  ©f  equity  would  relieve  a  vendor  where  more 
land  has  passed  than  was  contracted  for,  which  would  fully 
remove  the  objection.  Equity  forms  a  part  of  our  law,  there 
being  no  court  of  chancery  in  this  commonwealth.  To 
this  I  will  add,  that  this  is  not  the  first  instance  which  I 
have  known,  wherein  the  seller  of  lands  has  engaged,  that 
the  tract  sold  should  contain  a  certain  number  of  acres,  or 
that  a  diminution  should  be  allowed  in  the  price,  and  yet 
has  made  no  provision  to  be  paid  for  the  surplus  quantity, 
in  case  it  should  so  happen. 

2.  The  counsel  of  the  defendant  in  error  has  insisted  that 
the  acceptance  of  the  deed  of  23d  March  1798,  by  the  plain- 
tiff's testator,  ipso  facto  changed  the  rights  of  the  parties,  by 
an  alteration  of  their  relative  situation,  and  discharged 


OF  PENNSYLVANIA. 


Ill 


Evans  from  all  responsibility  for  the  quantity  of  land  ori- 
ginally contracted  for,  it  being  the  full  consummation  of  the"" 
agreement.  To  this  I  cannot  accede  in  the  broad  and  exten- 
sive sense  of  the  conclusion.  I  readily  admit,  that  the  re- 
ceiving of  the  deed  without  objection  made  at  the  time,  of 
the  want  of  proper  covenants  to  insure  the  number  of  acres 
contracted  for,  might  be  given  in  evidence  to  a  jury  upon 
the  trial  of  the  issue  to  shew  an  intended  alteration  of  the 
first  stipulation.  But  that  fact  standing-  alone,  would  pro- 
duce no  conviction  in  my  mind,  either  as  a  judge  or  juror, 
that  the  liability  which  once  existed  was  thereby  released. 
W  e  are  bound  to  say  from  the  written  expressions  of  Mr. 
Evans,  that  the  sale  was  made  by  the  acre.  Both  parties 
acted  under  a  belief  that  the  area  of  the  three  tracts  con- 
tained 99  H,  and  the  usual  allowance  of  six  per  cent.  The 
real  contents  were  not  ascertained  until  the  lines  were 
traced  and  measured  on  the  31st  of  May  1810,  under  a  rule 
of  Court.  Can  it  then  be  said  that  the  mere  acceptance  of 
the  conveyance,  under  mutually  erroneous  impressions,  re^ 
scinded  the  former  binding  agreement?  Where  was  the 
union  of  two  minds  to  effect  this  change  ?  I  can  see  nothing 
in  the  case  from  which  I  can  safely  infer  that  Evans  meant 
thereby  to  modify  the  contract  j  and  much  less  that  Hutchin- 
son  could  be  induced  to  assent  thereto  without  some  equi- 
valent. The  ground  of  the  defendant's  argument  resolves 
itself  into  a  question  of  fact  which  would  more  properly  be 
tried  by  a  jury,  who  would  I  think  have  little  difficulty 
thereon. 

Upon  this  point,  I  bottom  my  opinion  on  the  uniform 
practice  of  the  Courts  of  Pennsylvania,  as  declared  in  Swift 
v.  Hawkins  et  al.  (1  Dall.  17.)  in  1768,  which  had  prevail- 
ed many  years  before ;  that  in  order  to  prevent  a  failure  of 
justice,  the  obligors  of  bonds  had  been  let  in  under  the 
plea  of  payment  to  prove  mistake  or  want  of  consideration. 
I  will  exemplify  my  ideas  on  this  subject  by  a  familiar  in- 
stance. The  owner  of  land  agrees  to  sell  and  convey  by  a 
good  title  500  acres  to  another,  in  consideration  of  five  dollars 
per  acre,  payable  by  instalments.  Part  of  the  money  is  paid 
down,  bonds  given  for  the  residue,  and  a  deed  delivered 
without  any  covenant  for  the  goodness  of  the  title,  or  the 
quantity  of  land.  They  act  in  the  whole  transaction  with 


1813. 


SMITH 

v. 
EVANS. 


112 


CASES  IN  THE  SUPREME  COURT 


1813.        perfect  good  faith  toward  each  other ;  but  it  eventually  hap- 
SMJTH       pens  that  the  vendor  had  not  a  good  title  as  to  10O  acres, 
v.  part  of  the  lands  agreed  to  be  sold,  or  that  the  tract  con- 

EVANS.  tained  only  400  acres.  One  of  the  bonds  is  put  in  suit,  and 
the  vendee  claims  an  allowance  for  the  100  acres,  whereof 
the  title  is  defective,  or  the  tract  deficient  in  quantity.  What 
little  experience  I  have  had,  induces  a  confident  opinion, 
that  neither  a  Court  nor  jury  would  sanction  the  recovery 
of  the  full  consideration  money  in  such  a  case.  And  yet  I 
freely  confess,  that  if  under  this  state  of  facts  the  whole 
money  had  been  paid  and  the  transaction  closed,  I  know  of 
no  legal  mode  whereby  any  part  of  the  money  could  be  re- 
covered back. 

It  is  well  known  that  bonds  are  not  executed  for  lands 
sold  until  the  title  is  transferred  to  the  obligor ;  and  of  course 
it  follows,  that  a  conveyance  must  precede  the  litigation  of 
the  obligations.  But  the  doctrine  of  the  defendant's  counsel 
on  this  branch  of  the  case  goes  to  the  full  extent,  that  how- 
ever aggrieved  a  purchaser  of  lands  may  be,  by  the  seller's 
non-performance  of  his  original  contract,  if  the  deed  be 
once  executed  and  delivered  to  the  former,  and  it  contains 
no  proper  and  apt  covenants  obliging  the  seller  to  adhere  to 
his  first  agreement,  he  is  discharged  therefrom,  though 
both  parties  were  evidently  under  a  mistake  when  the  con- 
veyance was  made.  It  affects  to  establish  a  principle  that 
the  formality  of  a  deed  wholly  purges  a  breach  of  contract, 
though  not  so  intended  at  the  time  by  either  party,  and 
mellows  into  right  an  unequivocal  wrong-.  I  know  of  no 
imperious  rule  of  law  which  enjoins  us  to  attribute  such 
efficacy  to  a  conveyance ;  on  the  contrary,  I  know  from  our 
books,  that  it  is  the  peculiar  province  of  a  court  of  equity 
to  relieve  against  mistakes,  and  that  in  some  instances  parol 
evidence  has  been  admitted  to  correct  written  papers.  1  Vez* 
318. 4:57 •  The  objection  found  in  some  of  the  cases  at  law, 
that  the  party  should  resort  for  redress  to  the  chancellor,  is 
not  applicable  to  the  local  circumstances  and  judicial  tribu- 
nals of  this  Commonwealth. 

Even  admitting  the  deed  before  us  to  have  a  much 
stronger  influence  on  the  merits  of  the  case  than  I  am  wil- 
ling to  allow  it,  I  apprehend  that  the  words  "  more  or  less'* 
as  applied  to  the  991  £  acres  conveyed  thereby,  have  been 


OF  PENNSYLVANIA, 

construed  by  the  defendant's  counsel  in  a  sense  unwarranted 
by  the  laws.  According  to  Day  v.  Finn,  Owen  133,  cited  in" 
9  Vin.  Abr.  343.pl.  1O.  u  sive  plus  sive  minus*  shall  be  in- 
tended of  a  reasonable  quantity,  more  or  less  by  a  quarter 
of  an  acre,  or  two  or  three  at  the  most.  The  words  must 
naturally  refer  to  the  extent  of  the  grant.  Thus  in  §>uesnel 
v.  Woodlief  et  al.  cited  in  2  Hen.  fcf  Munf.  173.  (note\  it 
was  decided  that  those  expressions  in  a  deed  must  be  re- 
stricted to  a  reasonable  or  usual  allowance  for  small  errors 
in  surveys,  and  for  variations  in  instruments ;  and  in  Nelson 
v.  Matthews  et  al.  In  the  same  book  and  page,  it  was  ad- 
judged that  a  deficiency  of  eight  acres  in  a  tract  of  532  acres, 
was  no  more  than  a  purchaser  who  buys  for  more  or  less, 
might  reasonbly  expect,  but  that  it  was  otherwise  as  to  a 
deficiency  of  20  acres.  It  cannot  therefore  be  said  here  that 
a  title  for  903^  acres  could  be  deemed  equivalent  to  991  i 
acres,  although  the  words  "more  or  less"  are  inserted  in, 
the  conveyance. 

Upon  the  whole,  I  am  of  opinion  that  the  personal  repre- 
sentatives of  the  mortgagor  are  entitled  to  an  allowance  for 
the  deficiency  of  the  lands  conveyed,  upon  the  usual  prac- 
tice of  our  courts,  as  well  as  upon  principles  of  law,  equity 
and  common  honesty,  and  that  the  judgment  entered  in  the 
court  below  for  the  defendant  in  error,  by  consent,  but  with- 
out prejudice,  be  reversed. 

BRACKEMRIDGE  J.  At  the  original  contract  in  this  case, 
there  would  appear  to  have  been  before  the  parties,  the 
three  separate  drafts  of  the  surveys  of  the  three  adjoining 
tracts,  the  three  official  drafts  as  surveyed  upon  the  ground 
and  returned  into  the  office,  the  courses  and  distances  of 
these  with  the  calculated  quantity  returned  into  the  office, 
and  upon  which  three  separate  tracts,  according  to  the  quan- 
tity calculated,  patents  afterwards  issued.  The  sale  of  these 
tracts  was  according  to  the  courses  and  distances,  and  I 
must  infer,  according  to  the  calculation  of  the  official  sur- 
veys within  those  courses  and  distances.  In  such  a  case  is 
it  ever  understood,  unless  specially  provided  for,  that  there 
is  to  be  a  remeasurement,  in  order  to  ascertain  whether  the 
distances  fall  short,  or  a  recalculation,  in  order  to  ascertain 
whether  the  quantity  according  to  such  courses  and  distances 

VOL.  VI.  P 


113 


1813. 


SMITH 

v. 
EVANS, 


114 


CASES  IN  THE  SUPREME  COURT 


1813. 


SMITH 

v. 
EVANS. 


will  hold  out  ?  The  inconvenience  of  such  an  understanding, 
"and  the  uncertainty  of  surveys  at  different  times  and  by  dif- 
ferent chain  carriers,  would  lead  to  litigation.  Were  I  to 
refer  to  what  I  know  to  be  the  understanding  of  the  coun- 
try, it  is  that  in  the  case  of  official  drafts  in  all  contracts, 
unless  specially  stipulated,  the  quantity  is  taken  according 
to  the  official  calculation,  and  no  idea  is  ever  entertained  of 
a  remeasurement  or  a  recalculation. 

Is  there  any  thing  special  in  this  contract  which  would 
lead  to  the  idea  that  a  remeasuring  and  recalculation  were 
intended  ?  There  are  the  words,  twelve  shillings  and  six 
pence  an  acre.  This  it  is  clear  to  me  was  nothing  more  than 
the  result  of  looking  to  the  sum  for  which  the  purchase  was 
to  be  made,  and  comparing  it  with  the  reputed  quantity  or 
number  of  acres  ;  it  was  estimated  to  be  at  that  rate,  twelve 
shillings  and  six  pence  an  acre.  But  it  would  seem  to  me  to 
be  a  purchase  in  bulk,  and  the  words  "  less  or  more"  would 
refer  not  only  to  the  quantity  of  acres  actually  comprehended 
in  these  courses  and  distances,  but  to  this  quantity  at  twelve 
shillings  and  six  pence  an  acre,  making  up  the  sum  which  was 
to  be  given  for  the  whole  in  bulk.  I  would  take  the  terms 
expressly  to  mean,  that  whether  less  or  more  in  quantity, 
the  drafts  were  to  govern,  and  the  twelve  shillings  and  six 
pence  an  acre  had  a  reference  to  that  computation.  There  are 
three  tracts  of  ground  as  described  and  computed,  for  which 
I  must  have  so  much  money  in  the  whole.  But  I  cannot 
have  so  much  money  in  the  whole  if  it  is  to  be  reduced  by  a 
deduction.  And  we  all  know  that  the  mere  quantity  of  acres 
in  this  country  in  a  purchase  is  but  a  small  consideration, 
compared  with  the  laying  and  general  advantages  of  the 
whole.  I  cannot  construe  this  writing  so  as  to  think  that  the 
twelve  and  six  pence  mentioned  can  affect  the  stipulated 
sum  to  be  given  for  the  whole,  taken  for  more  or  less  as  it 
then  appeared.  Not  that  I  think  the  more  or  less  to  be  ap- 
plied to  the  twelve  shillings  and  six  pence  necessary,  or 
perhaps  intended,  but  taken  strictly  it  might  be  so  referred. 
But  whether  or  not,  my  construction  would  be  the  same. 

There  is  a  class  of  cases  in  this  country  that  is  springing 
up  and  begins  to  be  talked  of,  whereon  an  accidental  expe- 
riment or  running  of  a  line,  or  where  in  consequence  of  a 
division  amongst  minors  and  valuation  by  the  acre,  the 


OF  PENNSYLVANIA.  115 

surveys  are  found  to  contain  less  or  more  ;  and  where  an  in-  1813. 
timation  of  a  computation  of  the  purchase  money  from  the  SMITH 
number  of  acres,  has  unadvisedly,  because  unnecessarily,  got  v. 

into  a  mesne  conveyance,  claims  to  refund  or  set  off  may  be       EVANS. 
advanced.  I  have  heard  of  some  of  them  which  this  very 
controversy  has  awakened,  and  which  await  our  decision. 
I  concur  with  the  Chief  Justice. 

Judgment  affirmed. 


CAMPBELL  and  another,   Administrators  of  CAMP- 
BELL, against  the  Lessee  of  GRATZ. 

Thursday, 
IN  ERROR.  September  16. 

HPHIS  was  an  ejectment  brought  against  Patrick  Campbell   ™f™  2r^'!n 
•*•    the  intestate,  to  March  term  1797,  in  the  Common  ejectment,  in 
Pleas  of  Westmoreland.  The  Narr  laid  the  demise  on  the  lst«n  execution^°re- 
of  January  1793,  for  ten  years.  After  the  institution  of  thefused  afterthe, 

~  J  *  lapse  oi  several 

suit,  it  was  removed  to  the  Circuit  Court,  where  in  1 799 year*  from  the 
the  Court  on  motion  enlarged  the  term  to  fifteen  years,  from^h"  rcpira- 
and  in  November  180O,  it  was  tried  and  a  verdict  found  in tl0?  °J .the  term» 

7  ...  an(I  a'tfc'' »  new- 

favour  of  the  plaintiff  for    one    undivided  moiety  of  the  party  had  come 

lands  in  question.  After  the  judgment,  the  original  defen-'"  °'p01 
dant  took  a  lease  from  Grate,  and  a  new  lease  was  after- 
wards granted  to  William  Campbell,  son  of  the  original  de^ 
fendant,  by  Grate**  devisee,  between  which  parties  a  dis- 
pute had  arisen  as  to  possession.  At  May  term  1811,  a  writ 
of  habere  facias  was  issued,  together  with  ^Ji.fa.  for  costs, 
and  under  these  executions,  possession  was  delivered,  and 
the  costs  made.  A  motion  was  then  made  to  set  aside  both 
executions;  but  the  court  merely  set  aside  the  Ji.  fa.t  and 
suffered  the  other  to  stand. 

After  this  writ  of  error  was  returned,  Wilkins  for  the 
defendant  in  error,  moved  the  Court  to  enlarge  the  term  to 
25  years,  upon  the  ground  that  the  term  is  merely  a  fiction, 
that  the  powers  of  a  court  of  error  are  as  competent  to 
amend  in  such  a  case,  as  those  of  the  original  court,  and  that 
in  point  of  principle  there  is  no  difference  between  enlarging 
the  term  to  support  the  judgment,  which  is  done  every  day, 
and  enlarging  it  to  support  an  execution,  which  is  the  ob- 


116 


CASES  IN  THE  SUPREME  COURT 


1813.  ject  here.  He  cited  Tillotson  v.  Cheetham  (a),  2  TidePs 
Practice  1028.,  1  Ttdd's  Practice  662.,  Crasner  v.  Van  Als- 
tyne  (£),  and  Dunlap  v.  -S/wr  (c). 


CAMPBELL 

v. 

GRATZ'S 
Lessee. 


Foster  contra,  said  that  the  motion  was  made  in  order  to 
support  an  execution  illegally  taken  out,  which  was  contra- 
ry to  all  precedent ;  that  further,  the  plaintiff  had  been  in 
complete  possession  by  his  lease  to  the  tenant,  and  ought  to 
pursue  the  usual  remedies  between  landlord  and  tenant ; 
that  the  present  tenant  was  not  the  party  recovered  against, 
and  that  as  tenant  he  was  entitled  to  notice  to  quit,  instead 
of  having  an  execution  sprung  upon  him  from  a  judgment 
that  had  been  sleeping  thirteen  years.  That  whatever  might 
be  the  power  of  the  Court,  they  would  not  exercise  it  under 
circumstances  like  these* 

TILGHMAN  C.  J.  The  Courts  have  long  exercised  the 
right  of  enlarging  the  term  in  ejectments,  both  before  and 
after  judgment,  considering  it  as  no  more  than  an  instrument 
by  which  the  cause  is  brought  to  trial;  and  of  late  even 
Courts  of  error  have  made  the  same  amendments  which 
the  inferior  court  might  have  done.  All  this  is  for  the  sake 
of  supporting  a  judgment  after  trial  of  the  merits.  The 
plaintiffs  in  error  now  ask  us  to  go  one  step  further.  If  the 
Court  will  grant  an  amendment  to  support  a  judgment,  says 
he,  why  not  also  to  support  an  execution  2  If  at  the  time  of 
judgment  the  term  should  be  near  expiring,  and  the  plain- 
tiff should  inadvertently  suffer  it  to  run  out  before  he  issues 
his  extcution,  he  would  have  much  to  say  in  favour  of  an 
amendment,  especially  if  the  original  defendant  remained 
in  possession.  But  the  parties  in  this  suit  are  now  changed, 
thirteen  years  have  elapsed  since  the  judgment,  and  five 
since  the  expiration  of  the  term.  Upon  the  principle  con- 
tended for  by  the  plaintiff,  a  judgment  in  ejectment  might 
be  made  use  of  for  twenty  years,  as  an  instrument  to  obtain 
possession  from  whatever  tenant  might  be  placed  on  the 
land  by  the  defendant,  or  those  claiming  under  him.  This 
might  produce  great  injustice,  and  would  be  contrary  to  all 
principle,  because  it  would  be  using  the  judgment  to  the 
prejudice  of  persons  whose  titles  had  never  been  tried.  In 
the  present  case  for  example,  what  does  this  Court  know  of 
(a)  3  Johns.  95.  (i)  9  Johns.  386.  (c)  3  Sinn.  169. 


OF  PENNSYLVANIA:  117 

William  Campbell's  title  under  the  lease  by  which  he  was  in  1813. 
possession.7  As  a  court  of  error  we  know  nothing  that  is  "CAMPBELL 
not  in  the  record ;  and  are  we  to  go  out  of  it  for  the  purpose  v. 
of  trying  the  defendant's  title,  and  in  what  manner  are  we  GRATZ  s 
to  try  it  ?  for  the  facts  are  not  agreed  on.  It  seems  the  plain- 
tiff had  virtual  possession  by  the  attornment  of  the  original 
defendant,  who  after  the  judgment  took  a  lease  from  him. 
But  now,  a  dispute  has  arisen  between  the  devisee  of  the 
original  plaintiff  and  the  son  of  the  original  defendant,  to 
whom  a  new  lease  was  granted.  Suppose  the  plaintiff  had 
taken  out  his  execution,  and  having  obtained  possession,  had 
made  a  lease  to  the  defendant,  could  he  have  regained  the 
possession  by  a  second  execution  ?  Certainly  not.  He  would 
have  been  left  to  the  usual  remedy  of  landlord  against  te- 
nant. Besides,  as  the  discretion  of  the  Court  is  appealed  to 
by  this  motion,  it  appears  to  me  that  it  would  have  been 
more  proper  for  the  plaintiff  to  have  applied  to  the  Court  of 
Common  Pleas,  before  issuing  the  execution.  That  Court 
might  have  enquired  into  the  matter,  after  having  called  the 
other  party  before  them.  An  opportunity  of  being  heard 
ought  to  have  been  given,  because  turning  a  man  out  of  pos- 
session and  selling  his  goods  are  serious  matters.  Upon  the 
whole,  considering  the  length  of  time  and  change  of  parties, 
I  am  of  opinion  that  it  would  be  establishing  a  dangerous 
precedent,  supposing  this  Court  has  the  power  of  granting 
the  amendment,  to  exercise  it  on  the  present  occasion. 

I  am  of  opinion  therefore  that  the  motion  should  not  be 
granted. 

YEATES  J.  gave  no  opinion,  being  kept  from  Court  by 
sickness. 

BRACKENRIDGE  J.  concurred  with  the  Chief  Justice. 

Motion  denied. 


1813. 


CASES  IN  THE  SUPREME  COURT 


IRVINE  and  others  against  CAMPBELL. 


6b  118 
4sr529 
7s  r  76 
7s  i  81 
7s r  87 


Saturday,  IN  ERROR.  4^100 

September  18. 

The  seller  of    npHIS  was  an  ejectment  in  the  Common  Pleas  of  Ve- 

land,  although  he  J 

conveys  it,  retains   •*•     nango^  by  Charles  Campbell  the  plaintiff  below. 

an  equitable  lieu 
against  the  pur- 

chaser, and  alt          Upon  the  trial  of  the  cause,  the  facts  were  these  :   An  im- 

claiming  under  .  . 

him,  with  notice  provement  was  made  in  the  year  1796  upon  tne  land  in 


s^r  question,  which  lay  west  of  the  Allegheny,  for  the  use  of 
Hence,  if  by  the  John  Field;  and  a  settlement  was  commenced  at  that  time 

deed  of  convey-     !.-,,,,  , 

ance,  or  other  in-  by  virtue  or  the  act  of  the  3d  April  1792,  and  continued  up 
£SfU?S£.  to  21st  Januanj  18O2.  On  that  day  Field  sold  to  Campbell, 
it  appears  that  the  the  purchase  money  to  the  Commonwealth  not  having  been 

time  tor  paying  a       .  ,  ,  ,  _  . 

part  of  the  pur-    paid,  and  Campbell  was  or  course  entitled  to  a  patent,  on 
an  official  survey  made  and  returned,  and  paying  the 


purchaser  under  purchase  money.    On  the  29th  August  1803,  Campbell  sold 

that  title  at  .  -        .  .  .  .  .  .       .    .  „,.  , 

sheriffs  sale  or  by  an  instrument  or  writing,  and  conveyed  his  right  to  W  tt- 
8weerabieetor  an  liam  Milford  for  2,40O  dollars,  of  which  800  dollars  were  to 
that  by  the  terms  be  paid  in  one  year  from  the  date,  and  the  residue  in  yearly 

of  the  instrument  _  .    ,  ,  ..  ,  ._: 

•was  not  due  at  payments  or  300  dollars  each  until  the  whole  should  be  paid. 
purchase°f  But  \(Milford  was  to  take  out  the  patent  in  his  own  name  ;  and 
fcy  a  distinct  in-  Campbell  covenanted  that  the  improvement  right  wao  good. 

strumentbetween  „.  .  ..  -11  A      •    t         /•     A  • 

the  original  par-  A  his  writing  was  entitled  an  Article  or  Agreement,  and 
*'  fovth'e  contained  a  covenant  that  each  party  would  upon  reasonable 


•whole  purchase    request  give  to  the  other,  "  any  other  or  further  instrument 
"     not  due,  a"  of  writing  agreeable  to  law,  or  which  should  be  necessary 
"  for  the  security  of  either  party."    Immediately  under  this 

less  duly  re-  writing,  and  on  the  same  paper,  was  another  writing  exe- 
cuted by  Milford  under  hand  and  seal,  by  which  he  agreed 
that  no  title  was  to  vest  in  him,  till  the  whole  purchase  mo- 
ney was  paid.  This  last  writing  bore  date  in  the  year  1805, 
without  mentioning  day  or  month,  but  in  fact  was  executed 
in  the  month  of  November  1806.  Neither  of  these  writings 
was  recorded  till  the  16th  October  1809. 

David  frvinej  one  of  the  defendants,  purchased  the  land  at 
sheriff's  sale  on  the  21st  September  1808,  under  a  judg- 
ment in  favour  of  Jackson  assignee  of  M-Candles^  against 
Milford,  entered  the  25th  March  1808.  There  had  been  a 
judgment  for  Joseph  Taylor  and  Co.  against  Milford  at  Sep- 
tember term  1806,  part  of  which  was  paid,  and  the  remain- 


OF  PENNSYLVANIA.  119 

der  satisfied  by  the  acceptance  of  another  judgment  entered        1813. 
for  Taylor  and  Co.  agaisnt  Milford  and  one  Robert  Orry  at       IRVINE 
September  term  1807.    This  last  judgment  Irvine  paid  after        et  al. 
he  had  made  the  purchase  at  the  sheriff's  sale. 

The  question  below,  was  whether  Campbell  had  a  lien  on  AM1 
the  land  for  all  that  part  of  his  purchase  money  which  re- 
mained unpaid ;  and  the  presiding  judge  gave  it  in  charge  to 
the  jury,  that  Campbell  had  such  a  lien,  and  that  the  pur- 
chaser at  sheriff's  sale  took  the  land  subject  to  all  equitable 
liens  which  the  plaintiff  had  for  the  purchase  money,  with- 
out notice  of  such  lien.  To  this  opinion  the  defendant's 
counsel  tendered  a  bill  of  exceptions. 

Wiltins  and  A.  W.  Foster  for  plaintiffs  in  error. 
Ayres,  contra. 

TILGHMAN  C.  J.  After  stating  the  case,  delivered  his 
opinion. 

It  has  been  decided  by  this  Court  that  a  purchaser  at  she- 
riff's sale  is  protected  by  the  recording  act,  against  all  con- 
veyances not  recorded,  of  which  he  had  no  notice.  The 
question  will  be  then,  whether  the  defendant  stands  in  the 
situation  of  a  purchaser  without  notice.  In  examining  this 
point,  we  must  distinguish  between  the  deed  from  Campbell 
to  Mtlford)  and  the  other  writing  executed  by  Milford  on 
the  same  paper  with  the  deed.  As  the  plaintiff  claims  under 
the  deed,  and  cannot  make  out  his  title  without  it,  he  is 
bound  to  take  notice  of  every  part  of  it.  Now  it  appears  on 
the  face  of  this  deed,  that  part  of  the  purchase  money  was 
not  due  at  the  time  when  the  defendant  purchased  the  right 
of  Milford  from  the  sheriff.  This  was  sufficient  notice  that 
part  of  the  purchase  money  was  unpaid,  for  he  ought  not  to 
have  supposed  that  it  was  paid  before  it  was  due.  The  sel- 
ler of  land,  although  he  conveys  it,  retains  an  equitable  lien 
against  the  purchaser  and  all  claiming  under  him  with  no- 
tice that  the  purchase  money  is  unpaid.  For  so  much  there- 
fore of  the  purchase  money  in  this  case,  as  by  the  terms  of 
the  deed  was  not  payable  until  after  the  defendant's  pur- 
chase from  the  sheriff,  the  plaintiff  had  a  lien.  It  was  urged 
on  the  part  of  the  defendant,  that  the  plaintiff  had  lost  his 
lien  by  delivering  possession  to  Milford^  because  the  land 


120  CASES  IN  THE  SUPREME  COURT 

1813.       was  taken  up  from  the  Commonwealth,  not  by  warrant  or 
IRVINE   ""~otner  written  title,  but  on  terms  of  improvement  and  settle- 
et  al.         ment.  But  I  do  not  think  so.  It  was  incumbent  on  the  defen- 
v-  dant,  when  he  purchased  Milford^s  title,  to  look  farther  than 

CAMPBELL.  to  the  Dare  possession.  Seeing  a  mill  and  valuable  improve- 
ments, he  should  at  least  have  enquired  whether  the  settle- 
ment had  been  commenced  and  continued  by  Milford.  He 
ought  to  have  known  that  nothing  is  more  common  than 
for  one  man  to  make  an  improvement,  and  sell  it  to  another, 
so  that  before  the  expiration  of  the  five  years  required  by 
law  for  the  continuance  of  the  settlement,  the  land  may  have 
passed  through  several  hands.  In  short,  if  he  had  exercised 
common  prudence,  he  would  have  known  that  the  title  did 
not  originate  with  Milford,  but  was  derived  from  Campbell. 
Let  us  now  consider  the  other  writing  signed  by  Milford, 
giving  the  plaintiff  a  lien  for  the  whole  purchase  money. 
There  was  no  proof  that  the  defendant  ever  knew  of  that 
writing.  It  was  quite  a  distinct  thing  from  CampbelVs  deed, 
although  written  on  the  same  paper,  not  having  been  execu- 
ted till  upwards  of  three  years  after  it.  It  falls  therefore 
within  the  provision  of  our  act  for  recording  of  deeds,  (18th 
March  1775,)  by  which  all  deeds  any  way  affecting  land  in 
law  or  equity,  are  directed  to  be  recorded  within  six  months 
after  the  execution  thereof,  otherwise  they  shall  be  adjudg- 
ed fraudulent  and  void  against  any  subsequent  purchaser 
for  valuable  consideration.  The  plaintiff  then  had  no  lien  in 
consequence  of  this  writing ;  so  that  his  lien  must  be  confined 
to  that  part  of  the  purchase  money  which  on  the  face  of 
his  deed  to  Milford  was  not  due  at  the  time  of  the  defend- 
ant's purchase.  But  the  president  of  the  Court  of  Common 
Pleas  gave  it  in  charge  to  the  jury,  that  the  plaintiff  had  a 
lien  for  the  -whole  purchase  money.  In  that  he  went  too  far. 
I  am  therefore  of  opinion  that  the  judgment  should  be 
reversed,  and  a  new  trial  ordered. 

YEATES  J.  was  prevented  by  sickness  from  hearing  the 
argument,  and  gave  no  opinion. 

BRACKENRIDGE  J.  concurred  with  the  Chief  Justice. 

Judgment  reversed. 


s 


OF  PENNSYLVANIA. 


JOHNSTON  against  TAIT.  1813. 

Pittsburg; 
IN  ERROR.  Saturday, 

September  18. 


LANDER  in  the  Common  Pleas  of  Mercer.  .,  r 

that  the  defend- 
ant said  "there 

The  declaration  laid  the  words  to  have  been  spoken  by  !.' 


Tait  as  follows:   "It  is  a  rascally  business.    There  was  a"{-#an(|  ctto 
"  collusion  between  William  Johnston,  the  plaintiff  meaning,  «  person  swear  a 
"Aaron  Hackney,  Levi  Arnold  and  Peter  Rambo,  to  make  1,^^,^" 
"John  Bowman  swear  a  false  oath  in  a  suit  before  Peter  by  proof  of  im 
"  Rambo,  {Peter  Rambo  esquire  a  justice  of  the  peace  mean-  «  there  was  a  col- 
"ing,)  between  Bowman,  the  said  John  Bowman  meaning,  " 


"  and  Hackney  and  Arnold.*'  The  evidence  was,  that  the  de-  "  m»ke  See." 
fendant  said  "  that  Johnston  had  entered  into  a  collusion  with  kid  are  "  he  stole 
"Aaron  Hackney  and  Levi  Arnold,  to  make  &c.,"  without!!  ^l,^8^ 
mentioning  Rambo.  The  judge  charged  the  jurv  that  it  was  n»t  supported  by 

_»      i    /•  i       i       i  .  .  ,  .'          ,,          .  proving  thewords 

doubtful,  whether  the  evidence  supported  the  declaration  ;  to  have  been  "  he 
and  the  plaintiff's  counsel  excepted.  !!  8o^*c  8°*i» 

S.  B.  Foster  and  Campbell  for  the  plaintiff  in  error.  The  sub- 
stance of  the  words  was  proved,  and  that  was  sufficient  to 
support  the  declaration.  The  words  proved  were  substan- 
tially those  laid,  because  there  was  an  alleged  conspiracy 
between  the  plaintiff  and  two  of  the  three  persons  named. 
In  an  indictment  against  the  plaintiff  for  conspiracy  with 
the  three,  he  would  have  been  convicted  on  proof  of  a  con- 
spiracy with  two  of  them.  The  case  of  Cuming  v.  Sibly 
(a),  E.  9  Geo.  3.  C.  B.,  and  the  King  r.  Lookup  (b),  7  G.  3. 
B.  R.,  are  strong  to  shew  that  it  is  sufficient  to  prove  the 
substance,  except  where  the  tenor  is  stated. 

A.  W.  Foster  contra.  The  offence  according  to  the  words 
proved,  was  a  different  offence  from  that  charged  in  the 
declaration,  since  a  conspiracy  with  A  and  B,  is  a  different 
offence  from  a  conspiracy  with  C  and  D.  If  the  words  are 
changed,  and  the  charge  remains  the  same,  the  words  are 
matter  of  form  ;  but  if  the  change  of  them,  changes  the  of- 
fence, they  are  matter  of  substance.  The  offence  is  changed 
not  merely  when  its  specific  character  is  altered,  but  also 
(a)  1  D.  and  E.  239.  (4)  Ibid. 

VOL;  VL,  Q 


CASES  IN  THE  SUPREME  COURT 
1813.        when  its  individuality  is  gone.  He  cited  Nelson  v.  Sir  Wool- 


JOHNSTON 
V. 

TAIT.  TILGHMAN  C.  J.  delivered  judgment. 

To  give  the  plaintiff  the  full  benefit  of  his  exception,  I 
shall  consider  the  judge  as  having  said  that  the  evidence  did 
not  support  the  declaration  ;  for  when  he  told  the  jury  that 
the  law  was  doubtful,  they  would  naturally  find  for  the  de- 
fendant, it  being  incumbent  on  the  plaintiff  to  mak-e  out  his 
case  without  doubt  both  in  fact  and  law.  It  is  a  question 
which  admits  of  very  little  reasoning.  The  single  point  is, 
whether  the  words  laid  and  the  words  proved  are  substan- 
tially the  same.  I  think  they  are  not.  A  collusion  between 
A,  B  and  £",  and  between  A,  B,  Cand  Z),  are  different  things. 
It  is  not  necessary  to  prove  the  words  exactly  as  laid  ;  it 
will  do  if  you  prove  so  many  of  them  as  are  actionable.  2 
Salk.  660.,  the  §>ueen  v.  Slater.  If  the  plaintiff  declares 
that  the  defendant  called  him  a  strong  thief,  and  proves  that 
he  called  him  a  thief,  the  action  is  supported,  because  the 
only  material  word  is  thief.  Dyer  75.  But  if  the  words  laid 
had  been,  that  the  plaintiff  stole  the  goods  of  A,  proof  of  the 
defendant's  saying  that  the  plaintiff  stole  the  goods  of  By 
would  not  support  the  declaration  ;  because  although  stealing 
the  goods  of  B  is  an  indictable  offence,  yet  it  is  a  different 
offence  from  stealing  the  goods  of  A.  So  when  the  defen- 
dant says  that  the  plaintiff  with  B,  d7and  D  conspired  &tc., 
it  is  not  enough  to  prove  that  he  said  the  plaintiff  together 
with  B  and  C  conspired  &c.;  because  although  it  may  be  in- 
dictable for  the  plaintiff  to  conspire  with  B  and  C,  yet  it  is 
a  different  offence  from  his  conspiring  with  B,  C  and  D  ;  he 
may  have  been  guilty  of  both  and  punishable  for  both.  I  anfi 
of  opinion  therefore  that  the  charge  of  the  Court  was  right, 
and  that  the  judgment  should  be  affirmed. 

Judgment  affirmed. 


(a)  Hardw.  Ca.  2'jl 


6b  123 

3    350 

67      82 


OF  PENNSYLVANIA.  123 


PAUL  against  VANKIRK  and  DEPU.  1813. 


IN  ERROR.  Pittsburff, 

Saturday, 
September  18. 

THIS  was  an  action  of  trespass  in  the  Common  Pleas  A  warrant  direct- 
of  Westmoreland,  for  breaking  and  entering  the   still  t\debpyeaacJutf!llf 
house  of  the  plaintiff  Paul,  and  taking  away  sundry  goods,  constable,  if  it  is 
The  defendants  pleaded  non  cuL  with  leave  to  give  the  spe-  proper  constable 
cial  matter  in  evidence.  wdl  dirSS'  " 

On  the  trial,  the  plaintiff  called  a  certain  William  Davis,  A  constable  and 

..  ,  .  his  assistant  mar 

who  swore,  that  a  day  or  two  before  the  property  in  the  justify  under  an' 
declaration  was  taken  by  the  defendants,  he  was  the  owner  ^"Seliho^g'h 
of  it,  and  for  a  valuable  consideration  sold  and  deli  vered'tke  clearly  jn-e- 
the  whole  at  the  still  house  of  the  witness,  of  which  he  also  execution  against 


delivered  to  the  plaintiff  possession  and  the  key.     The  con-  Pp 
sideration  was  the  result  of  a  lumping  settlement  made  be-judgments. 
tween  the  parties  a  day  or  two  before  the  sale  ;  and  at  the 
time  of  the  settlement,  Davis  and  Paul  knew  there  were  two 
executions  out  against  the  former  and  Vankirk,  one  at  the 
suit  of  William  Irwin,  and  the  other  at  the  suit  of  William 
Irwin  assignee  of  Jesse  Regman.  The  plaintiff  also  proved 
the  taking  by  Depu  and  Vankirk. 

The  defendant's  counsel  then  produced  the  transcript  of 
two  judgments  against  Davis,  and  also  separate  judgments 
against  Vankirk  as  his  bail  ;  and  offered  in  evidence  two  ex- 
ecutions against  Davis  and  Vankirk,  under  which  Depu  as 
constable,  and  Vankirk  as  his  assistant,  had  seized  the  goods. 
The  executions  were  respectively  directed  "  Westmoreland 
County,  The  Commonwealth  of  Pennsylvania,  to  -- 
constable;"  and  recited  that  Ir-win  had  obtained  judgment 
before  the  justice  against  Davis  and  Vankirk,  the  amount  of 
which  it  required  the  constable  to  levy  of  their  proper  goods 
Sec.,  as  if  the  judgment  were  joint.  To  this  evidence  the 
plaintiff  objected,  but  the  Court  admitted  it,  and  sealed  a  bill 
of  exceptions. 

Two  objections  were  urged  in  this  Court  against  the  evi- 
dence as  a  justification  of  the  defendants  :  1.  That  the  writs 
were  not  directed  to  any  constable,  and  therefore  not  to  the 
constable  of  the  township  &c.,  where  the  defendant  resided, 
according  to  the  act  of  2Oth  March  1810;  but  it  was  admit- 
ted they  were  executed  by  the  proper  constable.  2.  That 


124 


CASES  IN  THE  SUPREME  COURT 


1813.  the  judgments,  being  separate,  did  not  warrant  the  execu- 

PAUL  tions,  which  were  joint. 

v. 

VANKIHK.  Forward,  for  plaintiff  in  error. 

A.  W.  Foster,  contra. 

TILGHMAN  C.  J.  after  stating  the  case,  delivered  judg- 
ment. 

Two  objections  are  made  to  the  execution.  1.  That  it  is 
not  directed  to  any  constable.  2.  That  there  was  no  judg- 
ment to  warrant  it. 

1.  The  act  of  assembly  orders  that  the  justice  shall  direct 
his  warrant  to  the  constable  of  the  district.     This  execution 

is  directed  to constable.  It  would  have  been  more 

proper  to  direct  it  to  the  constable  by  name,  or  to  the  con- 
stable of  the  district  generally  j  but  it  may  be  supported,  be- 
cause it  is  admitted  that  it  was  executed  by  the  constable  of 
the  district.  The  word  constable  with  a  blank,  cannot  be  said 
to  be  directed  to  a  wrong  constable,  and  may  be  understood 

intended  for  the  right  one.  I  do  not  know  that  the  consta- 
ble was  bound  to  execute  it  without  a  more  particular  direcj 
tion,  but  he  was  justified  in  so  doing. 

2.  The  execution  was  certainly  irregular.  A  joint  execu- 
tion against  principal  and  bail,  ought  not  to  be  issued  on  a 
separate  judgment  against  each.     If  the  plaintiff  in  the  suit 
before  the  justice,  had  been  defendant  in  the  present  action, 
it  might  have  lain  upon  him  to  shew  that  his  execution  was 
supported  by  the  judgment;  but  the  case  is  different  with 
the  constable,  and  the  other  defendant  who  acted  as  his  as- 
sistant.    It  is  enough  for  them  to  shew  an  execution  issued 
by  competent  authority.  Whether  the  execution  is  support- 
ed by  the  judgment,  is  a  question  in  which  it  would  be  unrea- 
sonable for  the  law  to  involve  them.    It  was  necessary  for 
the  defendants  to  make  out  that  the  goods  levied  on  were 
the  property  of  Davis,  and  that  they  had  authority  to  make 
the  levy.  I  am  of  opinion  that  the  execution  was  legal  evi- 
dence to  shew  the  authority,  and  therefore  the  judgment 
should  be  affirmed. 

Judgment  affirmed. 


6b  125 
llsralS 
3  49 


OF  PENNSYLVANIA.  125 


BOYLES  aginst  JOHNSTON'S  Executors. 


Pittsburg; 
IN  ERROR.  Saturday, 

September  18. 


THIS  was  an  ejectment  in  the  Common  Pleas  of 
for  213$  acres,  which  the  executors  of  Johnston,  the  or,  shewing  a  sur- 
plaintiffs  below,  claimed  under  a  warrant  of  the  8th  December  ^•hiwintimc',--* 
1  774,  in  favour  of  Stephen  Porter,  for  20O  acres  on  Stonu  a  warrant  in  the 

«  y  name  of  £,  call- 

Run.    On  this  warrant  a  survey  was  made  on  the  24th  No-  ing  for  A  as  ad- 
vember  1775  by  Joshua  Elder,  deputy  surveyor,  for  213ijd0^ig|'t"ofa°sm-. 
acres.  On  the  first  March  1782,  Porter  conveyed  to  Robert  v«y  found  in  the 

*  office  of  the  de- 

Johnston  the  testator,  who  obtained  a  patent  from  the  Com-  puty  surveyor,  on 

i.i  which  ^/'s  name 

monwealth.  was  indorsed  in 

The  defendant  claimed  under  an  application  dated  the  3d  t!!e  ^f  ^  ^"^s 
April  1  769,  and  signed  by  John  Pomeroy  in  the  name  of  Joh  n  surveyor,—  all 
Stephenson,  for  30O  acres  of  land  on  the  north  side  of  BUtek^SSXTJt 
lick  about  two  miles  from  the  fording,  which  he  produced,  dencetoshewa 
together  with  a  copy  of  the  location  for  the  land,  in  Stephen- 
sorfs  name.  No  survey  of  this  tract  was  ever  returned  to 
the  land  office  ;  but  the  defendant  proved  that  in  the  year 
1772,  a  cabin  was  built  upon  the  land  in  dispute  by  one 
Robert  Reed,  and  about  five  or  six  acres  of  land  deadened  ; 
that  Pomeroy  bought  the  improvement  of  Reed,  and  placed 
one  Milligan  upon  the  land,  who  improved  it  for  him  in  the 
years  1775  and  1776  ;  and  that  Pomeroy  in  his  life  time  had 
receipts  for  the  surveying  fees  paid  to  Joshua  Elder,  which 
had  been  lost,  and  had  requested  Thomas  Allison  about  20 
years  before  the  trial,  to  procure  a  tenant  for  the  land.  In 
order  to  prove  a  survey  of  the  land  in  dispute  for  Pomeroy  , 
under  the  above  location,  the  defendant's  counsel  then  offer- 
ed in  evidence,  successively,  the  following  papers  :  1.  A  manu- 
script book  containing  the  field  notes  of  Joshua  Elder  ,  de- 
posited in  the  office  of  the  deputy  surveyor  of  the  district, 
and  remaining  there,  by  which  it  appeared  that  this  land  was 
surveyed  for  Pomeroy  on  the  22d  April  1  773.  2.  A  warrant 
in  the  name  of  Samuel  Moorehead,  dated  the  24th  June 
1735,  calling  for  John  Pomeroy's  land  as  adjoining.  3.  An 
old  draught  of  a  survey  found  in  the  office  of  the  deputy 
surveyor,  on  which  the  name  of  John  Pomeroy  was  endors- 
ed in  the  hand  writing  of  Joshua  Elder,  and  on  which  the 


126  CASES  IN  THE  SUPREME  COURT 

1813.  name  of  Stephen  Porter  was  also  endorsed  under  the  name 
BOYLF.S of  Pomeroy.   The  Court  rejected  them  all,  and  sealed  a  bill 

v.  of  exceptions. 
JOHNSTON'S 
Executors.         KgUy  gnd  Regd  for  the  pla-int;ff  -n  eiTor>  relied  on  tfuUijs 

Lessee  v.  Chew  (a),  and  Sproul  v.  Plumsted*s  Lessee  (£). 
Forward,  contra. 

TILGHMAN  C.  J.  after  stating  the  facts,  proceeded  as 
follows : 

If  this  land  was  actually  surveyed  for  Pomeroy,  and  im- 
properly returned  by  the  deputy  surveyor  on  Porters  war- 
rant, and  if  Pomeroy  had  taken  possession,  insisted  on  his 
title,  and  never  relinquished  it,  then  there  would  have  been 
an  outstanding  title  which  would  have  barred  the  plaintiff's 
recovery,  even  though  the  title  of  the  defendant  had  not 
been  connected  with  that  of  Pomeroy.  Whether  it  was  so 
connected,  does  not  appear  by  the  bill  of  exceptions,  and 
therefore  we  cannot  suppose  that  it  was.  If  as  the  defend- 
ants' counsel  now  say,  the  connection  was  proved,  it  ought 
to  have  been  inserted  in  the  bill.  The  papers  rejected  by  the 
Court  seem  to  have  been  material  for  the  establishment  of 
Pomeroy's  title.  Such  papers  have  been  received  in  similar 
cases.  The  field  notes  of  the  deputy  surveyor  were  admit- 
ted in  Hubly^s  Lessee  v.  Chew,  %  Sm.  Laws  257 ;  and  it  is 
evident  that  the  old  draught  endorsed  John  Pomeroy,  must 
have  been  very  material  to  shew  that  the  survey  was  origin- 
ally made  for  Pomeroy.  Such  a  draught  was  given  in  evi- 
dence without  dispute,  in  the  case  of  Ross's  Lessee  v.  Fatter- 
son,  tried  before  the  late  Chief  Justice  Shippen  and  Judge 
Brackenridge  at  a  Circuit  Court  for  Lycoming  county,  in. 
which  I  was  counsel  for  Patterson.  In  that  case  the  name 
of  Patterson  had  been  endorsed,  then  obliterated,  and  the 
name  of  another  person  inserted  in  the  place  of  it.  The 
warrant  calling  for  the  land  of  Pomeroy,  also  tended  to  shew 
that  a  survey  had  been  made  for  him.  By  rejecting  these 
papers,  the  Court  took  upon  themselves  to  decide  matters 
which  ought  to  have  been  submitted  to  the  jury.  Whether 
the  location  was  the  property  of  Pomeroy,  and  supposing  it 

(a)  4  Smith's  Laws  257.  (*)  4  Ann.  192. 


OF  PENNSYLVANIA.  127 

to  be  his  property,  whether  he  had  acted  so  negligently  as        1813. 
to  forfeit  the  imperfect  title  which  he  had  acquired,  were       BOYLES 
matters  which  depended  on.  a  variety  of  circumstances,  con-  -v. 

cerning  which  the  Court  might  have  given  their  opinion  to  JOHNSTON'S 
the  jury  after  the  evidence  was  closed.  But  it  appears  to  me,    kxecutors> 
that  agreeably  to  former  decisions,  the  evidence  ought  to 
have  been  received.  I  am  therefore  of  opinion  that  the  judg- 
ment should  be  reversed,  and  a  new  trial  ordered. 

YEATES  J.  absent  in  consequence  of  sickness. 

BRACKENRIDGE  J.  was  of  the  same  opinion  with  the 
Chief  Justice. 

Judgment  reversed. 


END    OF    SEPTEMBER  TERM,  WESTERN    DISTRICT,    1813. 


CASES 


1813. 


Chamber sburgt 
Monday, 
September  27. 

Although  the 
landlord  and 
tenant  law  says 
the  judgment  of 
the  justices  shall 
be  final  and  con- 
clusive, a  writ  of 
error  lies. 


IX   THE 

SUPREME  COURT 

PENNSYLVANIA. 

Southern  District,  September  Term,  1813, 

CLARK  against  PATTERSON. 
IN  ERROR. 

ERROR  to  the  Common  Pleas  of  Bedford  county,  to  re- 
move the  record  of  the  proceedings  of  two  justices, 
in  a  landlord  and  tenant  cause. 

Riddle  for  the  defendant  in  error,  moved  to  quash  the 
writ,  upon  the  ground  that  the  act  of  21st  March  1772,  de- 
clares that  the  judgment  of  the  justices  shall  be  final  and 
conclusive.  1  Smithes  Laws  374. 

Duncan  contra,  said  there  had  been  many  cases  in  which 
the  judgment  of  the  justices  had  been  reversed  for  error  ; 
and  cited  Boggs  v.  Black  (a). 

Per  Curiam.  There  are  too  many  precedents  of  such 
judgments  removed  from  the  Common  Pleas  by  writ  of 
error,  to  permit  the  practice  to  be  questioned.  The  motion 
must  be  denied. 

Motion  denied. 


(a)  1  £inn.  333. 


CASES  IN  THE  SUPREME  COURT,  Sec:  129 


~6bi29  SANDERSON  Executor  of  SANDERSON  against 

6s -439  T 

5wh93:  JLAMBERTON. 

'2    272  1813. 


IN  ERROR.  Chmnbersburff, 

Monday, 

rF1HIS  was  an  action  against  Sanderson  the  testator,  on  SePtember  27- 

,  .«.,..  J*  agreed  with 

L  the  custom  as  a  common  carrier,  tor  not  delivering  to  R  a  com  m  on  car- 
Lamberton  a  barrel  of  castor  hats,  which  in  consideration  of  S^of  certain''" 


two  dollars,  he  had  agreed  to  carry  from  Philadelphia  toS00*13-  #  without 

,,      ..    .         _,,  .  .        .  .    .        ,  the  direction  of 

Carlisle.     The  suit  was  instituted  in  the  Common  Pleas  of  A,  agreed  with 
Cumberland,  and  during  its  pendency  Sanderson  died,  and  fo^th^carriage" 
his  executor  was  made  a  party  by  scire  facias.     In  this0^688™6?00*13* 

_  .  i         r  it  •    i  i.         aml  C  wi'hout 

Court  it  was  argued  upon  the  following  special   verdict,  the  knowledge  or 
on  which  the  Court  below  gave  judgment  for  the  plaintiff.       ed'wUhii  a 


third  Carrier.     I) 
_,,        .  i,     i  i  ,  1<)st  them.     Held 

*  i  he  jurors  empannelled   and  sworn  to  try  the  issue  that  Ji  might 
"joined  in  this  cause,  respectively  do  find,  that  the  plain-  a^S/Taml 
"  tiff  James  Lamberton*  on  the  twenty-eighth  day  of  Aprilt]™tby  bringing 

Ins  action  V\c 

"  Anno  Domini  onet  housand  seven  hundred  and  ninety  -si  x,  affirmed  the  con- 


"  being  in  the  city  of  Philadelphia,  bargained  and  contracted  h 

"  with  a  certain   John  Semple,  then  and  there  being  a  com-  could  not  after 

_    r.  .  ,  .    .   c  ,       that  recover  from 

"  mon  carrier,  to  carry  for  hire,  a  barrel  containing  twelve  jr  or  G. 
"  castor  hats,  the  property  of  the  said  James  Lamberton, 
'*  which  said  barrel  with  its  contents,  the  said  John  Semple 
44  agreed  to  deliver  in  a  reasonable  time,  to  the  said  James 
"  Lamberton,  at  his  store  in  Carlisle,  which  said  barrel  of 
u  hats,  were  at  the  time  of  the  above  contract,  deposited 
"  with  Benjamin  Scull  of  the  said  city.  The  jurors  afore- 
"  said  do  further  find,  that  the  said  John  Semple  after- 
"  wards,  without  the  direction  of  the  said  James  Lamberton, 
"  did  engage  and  contract  with  a  certain  John  Chambers, 
"  then  and  there  being  also  a  common  carrier  for  hire,  that 
"  he  the  said  John  Chambers,  would  deliver  the  said  barrel  of 
u  hats  to  the  said  James  Lamberton,  at  his  store  in  Carlisle 
"  in  a  reasonable  time.  And  the  jurors  aforesaid  respec- 
"  tively  do  further  find,  that  in  pursuance  of  the  agreement 
"  so  made,  between  the  said  John  Semple  and  the  said 
"  John  Chambers,  he  the  said  John  Chambers,  received  the 
*'  said  barrel  of  hats  from  the  said  Benjamin  Scull,  and  that 
"  the  said  John  Chambers  then  and  there,  without  the  know- 
Voi.  VI.  R 


130  CASES  IN  THE  SUPREME  COURT 

1813.        "  ledge  or  direction  of  the  said  James  Lamberton,  did  agree 
SANDERSON  "  vvitn  Robert    Sanderson,  the  defendant's   testator,    (the 
v.  "  said  Robert  then  and  there  being  a  common  carrier  for 

LAMBERTON.  u  hire)  that  the  said  Robert  should  carry  the  said  barrel 
u  of  hats,  and  in  a  reasonable  time  deliver  the  same  to  the 
"  said  James  Lamberton,  at  his  store  in  Carlisle.  And  the 
"  said  John  Chambers,  did  then  and  there  undertake  that 
"  the  said  James  Lamberton  would  pay  him  the  said  Ro- 
"  bert,  for  the  carriage  of  the  said  hats,  the  sum  of  two 
"  dollars,  upon  the  delivery  of  the  said  barrel  of  hats  at 
"  the  store  of  the  said  James  Lamberton,  in  the  borough  of 
w  Carlisle.  In  pursuance  of  which  said  agreement,  the  said 
"  Robert  then  and  there  received  from  the  said  John 
"  Chambers,  the  said  barrel  of  hats.  And  the  jurors  afore- 
"  said  do  further  find,  that  the  said  barrel  of  hats  was  not 
"  delivered  to  the  said  James  Lamberton,  at  his  store 
'*  in  Carlisle,  in  a  reasonable  time  by  the  said  Robert,  but 
"  that  the  same  was  entirely  lost  by  the  negligence  of  the 
"  same  Robert  Sanderson.  But  whether  the  plaintiff  is  en- 
"  titled  to  recover  &c.,  the  jurors  are  ignorant,  and  pray 
"  the  opinion  of  the  Court.  And  if  the  Court  shall  be  of 
"  opinion  in  favour  of  the  plaintiff,  then  the  jury  find  for  the 
41  plaintiff  the  sum  of  one  hundred  and  twenty-eight  dollars 
*'  and  twenty-nine  cents  damages,  and  six  cents  costs.  But 
**  if  the  Court  shall  be  of  opinion  in  favour  of  the  defend- 
*'  ant,  then  the  jurors  find  for  the  defendant." 

Metzger  argued  for  the  plaintiff  in  error,  that  here  there 
was  an  express  contract  made  between  Chambers  and  San- 
derson, which  negatived  any  implied  contract  between  the 
latter  and  Lamberton  ;  and  that  as  Sanderson  could  not  have 
recovered  his  compensation  from  Lamberton,  neither  could 
the  latter  recover  the  value  of  his  goods  from  Sanderson, 
The  action  against  the  carrier  must  be  in  the  name  of  the 
consignor  who  agreed  with  him,  and  was  to  pay  him ;  and 
in  this  case  Chambers  was  the  consignor,  acting  for  himself, 
and  not  for  Lamberton,  because  Lamberton  gave  no  autho- 
rity to  Semple  to  make  a  contract  for  him,  nor  did  Semple 
give  any  to  Chambers.  The  contract  by  Lamberton  was  spe- 
cially made  with  a  carrier  of  his  own  choice.  He  neither 
named  Sanderson  as  the  carrier,  nor  was  Sanderson  em- 


OF  PENNSYLVANIA.  131 

ployed  under  a  general  order  given  by  Lamberton  to  employ        1813. 
any  carrier.  He  therefore  cannot  maintain  the  action.  Dun- 


can v.  Keiffer  (a),  Davis  v.  James  (£),  2  Com.  on  Con.  315.  Vf 

LAMBERTON. 

Parker  and  Carothers  contra.  Sandersons  estate  is  clearly 
liable,  and  the  only  question  is,  by  whom  the  action  should 
be  brought.  The  present  action  avoids  circuity,  and  that  is 
of  itself  a  strong  argument  for  it.  But  in  addition  to  that, 
the  contract  with  Sanderson  was  clearly  made  for  the  benefit 
of  Lamberton,  and  he  has  therefore  a  right  to  affirm  it,  and 
sue  upon  it.  He  has  affirmed  it  by  the  suit.  Still  further,  he 
was  the  owner  of  the  goods,  and  an  action  against  a  com- 
mon carrier  may  be  supported  in  the  owner's  name,  although 
he  has  not  named  the  particular  carrier.  As  to  the  compen- 
sation of  Sanderson,  he  had  a  right  to  retain  for  it.  Schemer- 
horn  v.  Vanderheyden  (c),  1  Selw.  N.  P.  339.,  Snee  v.  Pres- 
cot  (</),  Godfrey  v.  Furzo  (e),  Evans  v.  Marlett  (/),  Skin- 
ner v.  Upshaw  (•§"). 

TILGHMAN  C.  J.  Upon  the  special  verdict  in  this  case,  it 
appears  that  Lamberton  the  plaintiff  below,  having  a  barrel 
containing  twelve  castor  hats  in  Philadelphia,  which  he 
wished  to  be  conveyed  to  Carlisle,  the  place  of  his  residence, 
agreed  with  John  Semple  a  common  carrier  for  the  carriage 
of  them.  Semple  without  the  knowledge  of  Lamberton,  con- 
tracted with  another  carrier  of  the  name  of  John  Chambers 
for  the  carriage.  Chambers,  having  received  the  barrel  from 
the  house  of  Benjamin  Scull  in  Philadelphia^  where  it  was 
deposited,  delivered  it  to  Robert  Sanderson,  who  was  also 
a  common  carrier,  and  engaged  that  on  its  safe  delivery  in 
Carlisle,  the  plaintiff  should  pay  to  the  said  Sanderson  the 
sum  of  two  dollars.  This  also  was  without  the  knowledge 
of  the  plaintiff.  The  barrel  was  lost  by  the  negligence  of 
Sanderson  ;  and  the  only  question  is,  whether  this  action  can 
be  supported  by  the  plaintiff.  That  the  estate  of  Sanderson 
must  be  answerable  for  the  value  of  the  hats,  there  is  nq 
doubt,  because  he  undertook  to  carry  them  and  he  lost 
them.  If  Lamberton  had  purchased  the  goods  in  Philadel- 

(a)  3  Binn.  126.  (J)  I  Atk.  248.  (/)  1  Ld.  Bay.  271. 

(6)  5  Burr.  2680.  (e)  3  P.  Wms.  186.        (5-)  2  Ld,  Ray.  75%. 

(c)  1  Johns.  130. 


132  CASES  IN  THE  SUPREME  COURT 

1813.       phia,  and  given  general  orders  to  the  person  from  whom 
SANDERSON    ne  purchased,  to  send  them  to  Carlisle,  and  that  person  had 
v.  contracted  with  Sanderson  for  the  carriage,  it  is  certain  that 

LAMBERTON.  an  action  for  the  loss  might  have  been  brought  by  Lamber* 
ton,  because  the  property  was  his,  and  the  contract  was 
made  for  his  benefit.  But  a  distinction  is  set  up  in  the  pre- 
sent case.  It  is  said  that  the  plaintiff  gave  no  such  general 
order,  but  made  a  particular  contract  with  a  carrier  of  his 
own  choosing.  True,  he  did ;  but  it  does  not  follow  that  he 
might  not  relinquish  that  contract.  Surely  he  might,  and  it 
appears  to  me  that  he  has  relinquished  it  by  bringing  this 
action.  Chambers  may  be  now  considered  as  the  agent  of 
the  plaintiff,  contracting  with  Sanderson  ;  because  the  plain- 
tiff has  affirmed  the  contract.  Supposing  that  the  plaintiff 
might  have  looked  to  Semple  in  the  first  instance,  yet  he 
cannot  do  so  now,  because  he  has  elected  to  adopt  the  con- 
tract made  with  Sanderson.  I  see  no  difficulty  in  the  case, 
and  am  clearly  of  opinion,  that  the  judgment  should  be 
affirmed. 

YEATES  J.  gave  no  opinion,  having  been  prevented  from 
sitting  at  the  argument. 

BRACKENRIDGE  J.  An  action  of  trover  and  conversion 
could  no  doubt  be  supported  by  Lamberton  against  Sander- 
son, for  the  general  or  absolute  property  was  in  Lamberton, 
and  a  special  only  or  qualified  property  in  Sanderson;  and 
the  not  delivering  to  Lamberton,  for  whose  use  he  had 
received  the  property,  but  retaining,  must  be  construed  a 
turning  to  his  own  use.  It  is  the  same  thing  in  legal  con- 
templation, as  if  he  had  found  the  property  of  Lamberton 
on  the  highway,  and  refused  to  deliver.  The  only  difficulty 
is  that  of  a  technical  subtlety,  the  declaring  in  assumpsit. 
An  express  promise  is  alleged  as  made  by  Semple  in  the 
first  instance,  and  this  is  in  the  way  of  an  implied  pro- 
mise by  Sanderson  to  deliver ;  expressum  cessare  faclt 
taciturn.  This  is  not  a  place  for  the  application  of  the 
maxim.  It  is  an  original  undertaking  by  Sanderson,  at  the 
instance  of  Semple,  to  deliver  to  I^mberton-  Semple  may  be 
considered  as  acting  as  the  agent  of  Lamberton  in  making 
this  agreement,  and  contracting  with  Sanderson.  Suppose 


OF  PENNSYLVANIA.  133 

Semple  living,  who  is  said  to  be  dead,  and  Lamberton  releas-        1813. 

ing  to  him  his  right  of  action  on  this  contract,  his  testimony  SANDERSON 

would  fix  the  undertaking  upon  Sanderson,  and  make  him  v. 

answerable.  The  jury  have  found  all  that  Semple  could  have  LAMBERTON. 

proved,  and  the  undertaking  becomes  express  with  Semple 

on  behalf  of  Lamberton^  that  he  Sanderson  would  carry 

these  goods.    This  may  be  said  to  be  something  like  an  as- 

tutia  in  the  case,  but  in  order  to  avoid  circuity  of  action  it 

is  allowable.    ^ucere,  whether  by  a   fiction,  for  the  sake  of 

equity  and  to  avoid  circuity,  it  might  not  be  carried  further, 

as  I  think  it  was  in  a  case  where  I  was  concerned  at  the  bar, 

where  A  sold  a  horse  to  B,  who  transferred  to  C,  who  also 

transferred  to  D  ;  and  it  turning  out  that  A  had  fraudulently 

concealed  defects  in   his   sale   to  B,   D   brings  his  action 

against  A»     But  this  I  throw  out  for  the  consideration  of 

what  may  be  done  to  reach  justice   against  him  who  was 

the  first  occasion  of  the  wrong,  and  put  into  circulation  as 

it  were  a  horse  that  was  unsound.  An  action  might  perhaps 

accrue  to  the  last  holder. 

Judgment  affirmed. 


Lessee  of  THOMAS  RICKETS   against  HENDERSON 
and  another 

IN  ERROR.  Chambersbws, 

EA  uesaay, 
September  29. 
JECTMENT  in  the  Common  Pleas  of  Huntingdon.     A  prothonota- 

ry's  certificate 
of  the  acknow- 

The  defendants  offered  in  evidence  below,  two  entries  J^g™6"*  in  °Pen 

r  Court  oi  a  deed 

upon  the  docket  of  the  Common  Pleas,  purporting  that  on  to  himself  by  the 
the  9th  of  September  1791,  a  motion  was  made  to  take  &e*2<rftteU. 

sheriff's  acknowledgment  of  a  deed  to  Andrew  Henderson.kno*}ed^nt 

0  upon  record,  are 

one  ot  the   defendants,  for  400  acres  of  land,  sold   as  the  evidence  in  his 

property  of  Edward  Rickets ;  that  it  was  opposed  by  the own  Cau8e* 
counsel  of  Rickets,  and  continued  to  December  Term  ;  and 
that  on  the  9th  of  December  1791,  the  sheriff  came  into 
Court  and  acknowledged  the  deed  to  Henderson,  bearing 
date  the  6th  of  September  1791.  They  also  offered  in  evi- 
dence the  deed  itself,  purporting  lo  have  been  sealed  and 
delivered  in  the  presence  of  Thomas  Smith  and  John  Canan, 
with  a  certificate  of  the  acknowledgment  under  the  seal  of 


134  CASES  IN  THE  SUPREME  COURT 

1813.       the  Court,  and  signed  by  Henderson  the  grantee.     It  was 
Lessee  of     admitted  that  the  entries  were  in  the  hand  writing  of  Hen- 
RICKETS     derson,  who  was  at  the  time  Prothonotary  of   the  Com- 
v'  mon  Pleas  of  Huntingdon,  and  that  Thomas  Smith^  one  of 

ENus  N  the  witnesses,  was  at  the  date  of  the  deed  and  its  acknow- 
ledgment, President  of  the  Court.  The  plaintiff  objected  to 
the  evidence ;  But  the  Court  admitted  it,  and  sealed  a  bill  of 
exceptions. 

S.  Riddle  for  the  plaintiff  in  error,  contended  that  the  en- 
tries and  certificate  were  inadmissible,  upon  the  same  prin- 
ciple that  a  man  cannot  be  a  judge  in  his  own  cause,  and 
that  a  commissioner  who  has  a  cause  depending,  cannot  join 
in  the  selection  of  jurors.  When  the  prothonotary  is  inter- 
ested, one  of  the  Court  should  make  the  entry  and  attest  it. 

Huston  contra.  The  law  has  made  no  provision  for  sub- 
stituting any  person  in  the  place  of  the  prothonotary,  and 
therefore  the  entry  and  certificate  of  any  other  person  might 
be  questioned.  The  prothonotary  is  not  in  the  situation  of  a 
judge  ;  he  exercises  no  discretion,  but  is  the  mere  organ  of 
the  Court. 

TILGHMAN  C.  J.  It  is  the  opinion  of  the  Court,  that  the 
deed  to  Henderson  was  properly  received  in  evidence.  A 
man  cannot  be  judge  in  his  own  cause,  because  his  interest 
may  influence  his  judgment.  A  commissioner  shall  not  se- 
lect a  jury  for  the  same  reason;  his  interest  may  influence 
his  mind  in  making  the  selection.  But  the  prothonotary  ex- 
ercises no  judgment  or  deliberation ;  he  barely  records  the 
acts  of  the  Court;  and  we  consider  the  entry  on  the  record, 
as  being  made  by  direction  of  the  Court,  and  in  fact  as  the 
act  of  the  Court.  The  judgment  is  therefore  to  be  affirmed. 

Judgment  affirmed. 


OF  PENNSYLVANIA.  135 

"135 

COLHOUN  for  the  use  of  ZANK  against  SNIDER.         1813. 

r    RH  - 

IN  ERROR.  Chambersburg. 


T2901 

r439 

•440 

441 

r  16 

*112 

"113 

s!88 

206 

279 

318 

480 

524 

374 

86 


Monday, 
October  4. 


N  this  case,  which  was  assumpsit  in  the  Common  Pleas    A  judgment  is 
o   Franklin  county  against  Snider  as  sheriff,  to  recover  j1^  ^"^^ 
the  proceeds  of  sale  of  a  house  and  lot  taken  in  execution  at  ly  purchased  by 

•  rr-          •  •»»•  i  r  /     i       r  11         •        the  defendant, 

the  suit  of  the  plaintiff  against  Michael  Immel,  the  follow  ing  and  aliened  before 
statement  of  facts  was  submitted  for  the  opinion  of  that exccutiea  issuetL 
Court,  and  was  the  basis  of  the  argument  in  this. 

44  Samuel 'Colhoun,  having  obtained  a  judgment  in  the  Com- 
41  mon  Pleas  of  Franklin  county,  by  confession  of  M.  Immel, 

44  on  the day  of 1804,  a  scire  facias  issued  on  said 

"  judgment  to  April  1807,  for  the  use  of  Jacob  Zank  against 
"  Michael  Immel,  and  terre-tenant,  and  was  served  on  the 
"  terre-tenant.  On  the  28th  of  Apri.  1807  judgment  was  en- 
44  tered  on  the  scire  facias,  an  execution  issued  to  August 
41  Term  18O7.  A  levy  was  made  on  a  house  and  part  of  a 
41  lot  of  ground  in  the  borough  of  Chambersburg,  and  a  ven- 
44  ditioni  issued  to  January  Term  18O8.  It  is  agreed  that 
"the  amount  of  sale  will  more  than  satisfy  the  saidjudg- 
44  ment ;  that  the  said  house  and  lot  were  acquired  by  the 
44  said  Michael  after  the  judgment  obtained  by  the  said  Zank 
44  {Colhoun}  first  as  aforesaid,  but  before  the  issuing  of  the 
"scire  facias  and  judgment  thereon:  that  the  said  Michael 
44  Immel  on  the  day  of  May  1806,  obtained  the  benefit 

44  of  the  Insolvent  Laws  of  the  Stale  of  Pennsylvania,  and 
44  assigned  his  property  of  every  description  [the  premises 
44  inter  alia]  in  trust  for  his  creditors.  If  on  the  above  state- 
44  ment,  the  Court  should  be  of  opinion  that  the  said  judg- 
44  ment,  so  first  had  as  above,  was  a  lien  on  the  said  house 
44  and  lot  acquired  as  above,  then  judgment  to  be  entered 
44  for  the  plaintiff ;  but  if  the  Court  should  be  of  opinion  that 
44  the  said  judgment  was  not  a  lien,  then  judgment  to  be  en- 
44  tered  for  the  defendant." 

Judgment  was  entered  below  for  the  defendant,  and  the 
plaintiff  sued  out  this  writ  of  error. 

The  point  was  argued  with  great  learning  at  the  last  term 
of  this  District,  by  M'-Cullough  and  Duncan  for  the  plaintiff 
in  error,  and  by  Chambers  and  Dnnlop  contra;  and  was  held 


CASES  IN  THE  SUPREME  COURT 


1813. 


COLHOUN 
V. 

SNIDER. 


under  advisement  until  this  term.     The  arguments  of  the 
"counsel  being,  so  far  as  is  material,  detailed  in  the  opinions 
of  the  judges,  it  is  only  necessary  to  advert  to  the  authori- 
ties that  were  cited  and  relied  upon. 

In  favour  of  the  position  that  a  judgment  is  a  lien  upon 
after  purchased  lands,  were  cited  1  Roll,  Abr.  892.  No.  14., 
30  Ed.  3.  24.,  1  Roll.  Ab.  892.  No.  15.  No.  16.,  30  Ed.  3. 
24.,  2  Roll.  Abr.  472.  P.  No.  3.,  2  H.  4.  8  b.,  Brace  v, 
Duchess  of  Mar  Ibo  rough  (a).,  2  Sound.  68  e.  note.,  Sugderi's 
Law  of  Vendors  306.,  42  Ed.  3.  11.  a.,  42  ^w.  />/.17.,  2  #. 
4.  8.  a./>/.  42.  14.  a./>/.5.,  £%q»A.  /Vac*.  Courts.  305.,  #«a5- 
fordv.  Martin  (£).,  19  Fm.  555.  56O.,  Fitz.  N.  B.  Ld.  Bale's 
Notes,  596.,  6  Com.  Dig.  Statute  Staple.  D.  5.  pa.  305.,  2 
Sound.  8.  9.  10.  note  5.,  2  £ac.  698.  Execution.  B.  5.,  75. 
7OO.,  Co.  Litt.  102.  a.,  1  Smith's  Laws,  57. 60. 

On  the  other  hand  were  cited  2  Bac.  686.  Execution  A., 
Co.  Litt.  102  a.  £.,  2  //zs*.  395.  396,  678.,  3  Rep.  12  a.,  Terms 
de  la  Ley.  Execution.,  3  Black.  419.,  Rundle  v.  Etrvein,(c), 
Pleasants  v.  Bayer,  (of.) 


(a)  2  P.  Wms.  492. 
(&)  Winch.  84. 


(c)  Jfcf.  &  Sup.  C.  Pa.  Dec.  1795.* 
(d}M.  S.  Ct.  Ct.  Westmd.  1802. 


*  The  following  is  a  note  of  that  case,  extracted  hy  the  Chief  Justice  from  the 
manuscript  notes  of  Mr.  Justice  Teates. 

TluNDLE  and  MUBGATHOYD  ")  Supreme  Court,  Philadelphia,  December  Term 
v.  >  1795,  before  JWKean  C.  J.,  Shippen,  Yeates, 

ETWEIN.  J  and  Smithy  Justices. 

Scire  facias  on  a  judgment  for  plaintiffs  as  assignees  of  John  Scliaffer  against 
George  Weiss,  26th  February  1787,  on  a  bond  dated  14th  January  1786.  A 
Ji.  fa.  issued  to  June  term  1789,  which  was  levied  on  real  property  acquired  by 
Weiss  subsequent  to  the  judgment,  and  aliened  by  him  prior  to  the  levy.  By 
agreement  of  the  parties,  the  defendant  was  permitted  to  inquire  into  the  con- 
sideration of  the  bond  on  which  judgment  was  obtained ;  and  it  was  clearly  proved 
that  the  bond  was  obtained  from  Weiss  without  consideration,  and  by  a  wicked 
and  fraudulent  combination  to  defraud  Charles  JVorris  (a  young  man  of  large 
fortune  but  subject  to  intemperance)  of  a  considerable  sum  of  money  ;  and  that 
the  bond  formed  part  of  the  system  of  the  iniquitous  proceeding. 

The  Court  declared  that  the  plaintiffs,  though  innocent  assignees  of  the  bond, 
and  without  notice,  stood  in  the  place  of  the  obligee,  so  as  to  let  in  every  defence, 
which  the  obligor  had  against  the  obligee  at  the  time  of  the  assignment  or  notice 
thereof,  and  therefore  were  not  entitled  to  recover  on  the  merits  either  in  law  or 
equity. 

They  further  declared  that  execution  could  not  be  levied  on  lands,  which  the 
defendant  got  by  purchase  after  the  judgment,  if  he  aliened  them  before  execu- 
tion bonajide.  Verdict  for  defendant.  jRatvfe  for  plaintiffs.  Porter  and  Lewis  for 
defendant. 


OF  PENNSYLVANIA. 


137 


TILGHMAN  C.  J.  The  question  in  this  case  is,  whether  a 
judgment  is  a  lien  on  lands  purchased  by  the  defendant  after  * 
the  judgment,  and  aliened  before  execution  issued.  I  am 
well  satisfied  that  by  the  English  common  law  such  lands 
are  bound.  But  it  seems  to  have  been  differently  under- 
stood in  this  state.  In  the  case  of  Rundle  and  Murgatroyd 
v.  Etwein^  in  this  Court,  (December  Term  1795)  it  was  the 
opinion  of  all  the  Court,  as  appears  by  a  manuscript  note 
of  Judge  Teatesy  that  after  purchased  land  was  not  bound. 
I  feel  myself  obliged  to  pay  great  respect  to  this  opinion, 
particularly  as  the  late  Chief  Justices  M'Kean  and  Shippen 
were  then  on  the  bench,  who  from  their  age  and  long  expe- 
rience were  well  acquainted  with  the  practice  of  early  times. 
It  is  certain  that  in  many  instances  the  common  law  of  Eng- 
land has  been  departed  from  in  this  country,  from  a  sense 
of  inconvenience,  which  has  produced  a  silent  practice^  not 
now  to  be  traced  to  its  origin.  In  truth  it  is  of  no  great 
importance  how  the  point  is  settled,  so  that  it  be  but  set- 
tled ;  and  I  am  induced  to  abide  by  the  decision  in  Rundle 
v.  Etwein,  because  I  perceive  that  it  has  been  acted  upon 
in  different  parts  of  the  state,  so  that  to  overturn  it  now 
might  be  injurious  to  purchasers  who  have  relied  upon  its 
authority.  I  find  by  notes  of  the  late  Judge  Smithy  in  my 
possession,  that  the  law  was  laid  down  in  conformity  to 
Rundle  v.  Etwein,  in  the  case  of  the  Canal  Company  v. 
Nicholson  in  this  Court,  (March  Term  1798,)  and  in 
Pleasants  v.  Boyer,  Circuit  Court,  Westmoreland  county, 
November  1802.  There  has  been  some  difference  of  opinion 
respecting  the  common  law  on  this  point;  but  I  have  reason 
to  suppose  from  a  conversation  which  I  once  had  with 
Judge  Smithy  that  both  he  and  Chief  Justice  Shippen  found- 
ed themselves  on  the  understanding  which  had  long  pre- 
vailed in  this  state.  Be  that  as  it  may,  my  opinion  is  bot- 
tomed solely  on  the  decisions  which  I  have  mentioned,  and 
therefore  I  forbear  from  entering  into  any  discussion  of  the 
common  law  principle. 

I  am  of  opinion  that  the  judgment  should  be  affirmed. 

YEATES  J.  The  question  before  the  Court  is,  whether 
lands  purchased  by  a  defendant  after  judgment  had  against 
him,  and  sold  by  him  bondfde  before  execution,  be  bound 

VOL.  VI.  S 


1813. 


COLHOUN 

V, 

SNIDER. 


138  CASES  IN  THE  SUPREME  COURT 

1815.        by  the  lien  of  the  judgment,  so  that  the  same  may  be  taken 
COLHOUN     in  execution,  in  the  hands  of  the  fair  purchaser. 

v.  This  subject  has   presented  itself  to  roy  consideration, 

SNIDER,      both  at  the  bar  and  on  the  bench,  and  I  have  given  it  all 

the  reflection  in  my  power.     I  shall  now  consider  it  upon 

principle,  upon  the  English  authorities,  and  how  far  such 

lien  would  be  consistent  with  our  laws  and  customs. 

Upon  principle,  it  seems  to  me  that  whatsoever  may  be 
the  efficacy  of  a  judgment  per  se,  it  must  take  place  at  the 
time  the  same  is  rendered.  The  lien  attaches  at  the  mo- 
ment of  entrv,  and  I  can  have  no  idea  of  its  shutting  at  one 
period  and  opening  at  another,  so  as  to  embrace,  of  itself 
merely,  property  not  originally  bound.  Its  effects  are  im- 
mediate, and  must  be  known  and  ascertained,  when  the 
judgment  is  given,  and  cannot  depend  upon  subsequent 
events,  unless  it  has  been  so  provided  by  positive  law.  In  a 
writ  of  debt,  a  man  shall  not  have  recovery  of  any  lands  but 
of  those  which  the  defendant  hath  the  day  of  the  judgment 
yielded ;  and  of  chattels,  a  man  shall  have  execution  only  of 
the  chattels  which  he  hath  the  day  of  the  execution  issued. 
Termes  de  la  Ley,  Voc.  Execution. 

In  point  of  authority,  I  fully  agree  that  several  of  the 
elementary  writers  lay  down  the  law,  that  execution  may 
be  sued  of  any  land  which  the  defendant  had  by  purchase 
after  the  judgment,  though  he  had  aliened  it  before  execu- 
tion. 1  RoL  Abr.  892.pl.  16.;  10  Vin.  Abr.  563.  pi.  16.; 
SDanv.  Abr.  317.pl.  16.;  Sugderfs  Vendors  306.  The  posi- 
tion in  the  first  three  writers  rests  on  the  single  authority  of 
the  Tear  Book  of  SO  Edw.  3.  24.  The  note  subjoined  to  Sug- 
den  has  enumerated  some  other  cases,  none  of  which  upon  in- 
spection will  be  found  to  warrant  the  doctrine  in  the  extent 
laid  down.  Rolle  seems  to  have  been  followed  by  the  other 
authors,  but  how  far  he  is  himself  supported  by  the  autho- 
rity he  relied  on,  must  be  collected  from  30  Edw.  3.  24.,  a 
literal  translation  whereof  follows  :  u  A  man  had  recovered 
14  a  certain  debt  against  Sir  "John  de  Moleyna,  and  had  an 
"  elegit.  The  sheriff  returned  that  he  had  nothing.  Moivb.  («) 
"  prayed  the  capias.  Fish,  (b)  When  you  have  execution  at 

(a)  John  de  Motvbray,  a  Serjeant  at  Larta.  Dugd.  Chron.  Sen.  47. 
(b}  Will  de  Fishide,  Serjeant  at  Law.  Dugd.  Chron.  Ser.  45>. 


OF  PENNSYLVANIA. 


139 


"  your  election,  and  you  choose  the  elegit,  you  cannot  now 
"  have  another  execution.  Mowb.  A.her  fieri  facias,  if  the 
"  sheriff  returns  that  he  has  nothing,  a  man  shall  have 
"  elegit.  Seton  («).  Every  elegit  includes  a  fieri  facias. 
"  Finch.  If  at  the  time  of  the  judgment  rendered,  he  had 
"  any  land,  but  had  aliened  afterwards,  you  might  have 
"  execution  of  this ;  and  if  he  had  purchased  lands  after- 
"  wards,  you  have  execution  of  this,  for  you  have  the 
u  elegit,  sicut  alias  et  pluries  ;  and  if  he  had  no  lands  at  the 
"  time  of  the  judgment  rendered,  this  would  be  your  own 
"  folly  that  you  would  pray  an  elegit,  and  then  when  you 
"  were  apprized  that  he  had  nothing  ;  therefore  there  is  no 
u  mischief,  but  you  shall  not  have  the  capias  &c." 

Now  it  appears  to  me  that  this  case  not  only  does  not  sup- 
port the  inference  of  the  abridgers,  but  is  directly  opposed 
thereto ;  because  the  Tear  Book  says,  if  at  the  time  of  the  judg- 
ment rendered,  the  defendant  had  lands,  but  had  aliened  after' 
wards,  of  this  you  may  have  execution.  If  he  had  purchased 
lands  afterwards,  of  this  you  may  have  exection  by  alias 
or  pluries  elegit.  It  cannot  be  denied  that  one  may  fairly 
sell  his  lands,  pending  a  writ  sued  out  against  him,  before 
judgment;  but  that  he  cannot  defeat  a  judgment  by  a  sale 
of  the  lands  of  which  he  was  seized  when  the  judgment 
was  given.  As  to  after  purchased  lands,  the  previous  judg- 
ment in  ray  idea  does  not  affect  them,  but  they  are  bound 
by  the  delivery  of  the  writ  to  the  sheriff. 

Sir  Nicholas  Statliam  (£)  first  attempted  to  methodize 
the  law.  It  has  been  remarked  that  this  venerable  abridg- 
ment contains  many  original  authorities,  which  are  not  ex- 
tant at  large  in  the  Tear  Books.  It  is  difficult  to  make  out  his 
law  French  from  the  frequency  of  his  abreviations ;  but  the 
following  is  supposed  to  be  a  correct  translation  of  the  case- 
reported  by  him,  title  Execution,  page  1. 

u  Mich.  30  Edw.  3,  one  prayed  execution  by  elegit,  and 
"  had  it,  to  which  the  sheriff  returned  that  he  had  nothing ; 
"  wherefore  he  prayed  a  capias,  and  he  could  not  have  it. 
"  But  it  was  said  to  him  that  he  might  sue  sicut  alias,  if  the 
"  tenant  came  to  the  lands  or  goods  afterwards,  but  he  shall 

(«)  Seton,  a  judge  of  B.  R.  Ib.  46.  and  appointed  Chief  Justice,  31  EJv.  3. 
Ibid.  48. 

(b}He?vas  appointed  second  Baron  oft/ie  Exchequer.  Dugd.  Citron.  Ser.  68. 


1813. 


COLHOUN 

r. 
SNIDER. 


140 


CASES  IN  THE  SUPREME  COURT 


1813. 


COLHOUN 

V* 
SNIDER. 


"  never  have  capias,  nor  fieri  facias.  And  Thorpe  (a)  said 
""that  the  reason  is,  because  the  entry  is  that  such  a 
"  one  comes  and  elegit  his  execution  of  the  moiety  &c. 
"  which  is  the  plaintiff's  high  execution  &c.v  Fitzherbert 
in  his  Grand  Abridgment^  tit.  Execution,  126,  is  almost  a 
literal  copy  of  it,  and  has  assisted  me  in  my  translation.  It 
is  obvious  on  comparison  that  Statham  and  Fitzherbert  did 
not  abridge  this  case  from  the  Tear  Book  ;  and  that  they  put 
the  after  purchased  lands  and  goods  upon  the  same  footing, 
as  to  the  effect  of  the  alias  elegit.  Respectable  as  the  name 
of  Rolie  may  be,  I  cannot  avoid  observing,  that  when  he 
cites  an  authority  for  his  doctrine,  we  are  bound  to  exa- 
mine the  accuracy  of  his  extract. 

The  plaintiff's  counsel  have  urged  another  argument 
from  the  usual  form  of  writs  of  elegit,  which  directs  the 
sheriff  to  deliver  one  half  of  the  defendant's  land,  which  he 
had  at  the  time  of  the  judgment  given,  or  ever  after,  (or  at 
any  time  since)  upon  a  reasonable  price  or  extent.  At  com- 
mon law,  lands  could  not  be  taken  in  execution  on  a  judg- 
ment for  debt  or  damages,  unless  in  special  cases.  The 
Stat.  of  Westm.  2.  c.  18.  (13  Edw.  1,)  was  the  first  act 
which  subjected  lands  to  the  execution  of  a  judgment  or  a 
recognizance.  3  Co.  11  b.  12  a.,  Wright's  Tenures  17O, 
171.  The  statute  directs  that  "  Cum  debitum  fuerit  recupe- 
"  ratum,  quad  vicecomes  liberet  ei  medietatem  terrce  suce, 
"  quousque  debitum  fuerit  levatum  per  rationabile  pretium, 
"  vel  extentam,  et  si  cjiciatur  de  illo  tenemento,  habeat  re- 
"  cuperare  per  breve  novas  disseisince,  et  pontea  per  breve 
"  redisseisincc  si  necesse  fuerit."  1  Ruff.  Stat.  93.  Ld.  Coke 
in  his  7  Rep.  39  a,  states  that  by  construction  of  law  the 
medietatem  terras  is  of  all  the  lands  which  the  debtor  had 
at  the  time  of  the  judgment  given,  or  at  any  time  after.  If 
either  he  or  the  writ  had  gone  further,  and  said  "  though 
*'  the  lands  after  acquired,  had  been  sold  by  the  debtor  sub- 
**  sequent  to  the  judgment,"  I  should  have  thought  the  ar- 
gument conclusive  of  the  law  of  England ;  but  as  I  have 
before  asserted,  I  understand  the  law  to  be,  that  the  after 
purchased  lands  of  which  the  debtor  stood  seized  at  the  time 
of  the  delivery  of  the  elegit  to  the  sheriff,  became  thereby 


(a)  Will,  de  Thorpe  was  appointed  Chief  Justice  ofB.  R.  20  Edw.  3. 


OF  PENNSYLVANIA. 


141 


subject  to  the  debt,  in  the  same  manner  that  all  his  personal 
property  would  then  become.  Lord  Coke  too,  in  his  2  Inst." 
395,  commenting  on  the  words  medietatem  terrce  suce  in  the 
statute,  lays  it  down  expressly  "  this  is  to  be  understood  of 
*'  such  lands  as  the  defendant  had  at  the  time  of  the  judgment 
"given,  or  of  the  recognizance  knowledged,  unless  it  be  con- 
"  veyed  away  by  fraud  and  covin  to  deceive  his  creditors." 
So  in  Co.  Lift.  102  a.  upon  judgment  in  debt,  the  plaintiff 
shall  not  have  execution  but  only  of  that  land  which  the  de- 
fendant had  at  the  time  of  the  judgment,  for  that  the  action 
was  brought  in  respect  of  the  person,  and  not  of  the  land. 
And  again  in  7  Co.  171  a.  the  freehold  and  inheritance 
which  a  common  person  has  at  the  time  of  judgment  is 
bound  thereby,  but  in  the  king's  case  from  the  time  the  party 
becomes  the  king's  debtor.  It  has  been  objected  by  the 
plaintiff's  counsel,  that  these  different  passages  in  Lord  Coke's 
works,  mean  nothing  further  than  that  lands  sold  bond  jide 
pending  the  writ,  are  not  bound  by  the  judgment,  but  that 
his  intention  did  not  extend  to  after  purchased  lands.  I  can- 
not accede  hereto,  thinking  as  I  do,  that  it  would  be  using 
an  unwarrantable  freedom  with  plain  language. 

Sir  W.  Blackstone  likewise,  in  his  3  Comm.  418.  419., 
speaking  of  the  stat.  of  13  Ed.  \.  c.  18,  says,  if  the  goods 
are  not  sufficient  to  pay  the  debt,  then  the  moiety  or  one 
half  of  the  defendant's  lands  which  he  had  at  the  time  of  the 
judgment  given,  is  nlso  to  be  delivered  to  the  plaintiff.  And 
to  this  point  he  cites  2  Inst.  395,  above  stated. 

On  a  recovery  in  personal  actions,  execution  shall  be  of 
any  land  which  the  party  had  on  the  day  of  the  judgment 
rendered ;  but  for  chattels,  only  those  which  he  had  the  day 
of  the  execution  sued.  Finch  of  Law,  471.  If  debt  be 
brought  at  common  law  on  a  recognizance,  he  shall  have 
only  judgment  of  the  lands  diejudicii  redditi  on  the  original 
writ ;  but  if  by  scire  facias  founded  on  the  record,  then  he 
shall  have  execution  of  the  lands  which  the  conusor  had  on 
the  day  of  making  the  recognizance.  Dyer  306.  a.  b.  Exe- 
cution shall  only  issue  of  the  lands  had  at  the  time  of  the 
judgment  rendered.  6  Edw.  S.fol.  15.  pi.  14.  Scire  facias. 

Per  Shard;  you  shall  have  execution  but  of  the  lands 
which  he  had  on  the  day  of  the  judgment  rendered.  6  Edw. 
3.  fol.  17.  pi.  23.  Scire  facias. 


1813. 


COLHOUK 

V. 

SNIDER. 


CASES  IN  THE  SUPREME  COURT 


1813. 


COLHOUN 
V. 

SNIDER. 


Besides  the  several  authorities  which  have  been  already 
"cited,  many  others  may  be  shewn,  restricting  the  liens  of 
judgments  under  the  Stat.  of  2  West.  c.  18. ;  but  I  shall  re- 
fer generally  to  2  Bac.  Abr.  363.  364.,  Wood^s  Inst.  6O7 
(edit.  0/1738.),  Cro.  Car.  149.,  Cro.  Jac.  451,  452.,  Kdlw. 
87  a.,  F.  N.  B.  267. /o/.  59f.,  2  Hen.  4.  14  a. 

It  is  moreover  worthy  of  observation  that  though  Ld.  Cli. 
Bar.  Coinyns,  in  his  3d  Dig.  307.  (1st  edit.)  tit.  Execution, 
D.  1.,  cites  the  case  of  30  Edw.  3.  24.,  in  two  instances,  yet 
he  wholly  omits  the  deductions  drawn  from  it  in  1  Roll. 
Abr,  892.  pi.  16,  and  confines  the  liability  of  the  lands  to 
those  which  the  defendant  had  at  the  time  of  the  judgment 
rendered. 

The  case  of  the  King  v.  Death,  Cro.  Jac.  513.  Mich. 
15  Jac.  in  the  Exchequer,  which  was  not  cited  upon  the 
argument,  has  been  put  into  my  hands  by  a  learned  friend, 
who  observed  that  it  required  an  answer.  It  is  short,  and  runs 
thus  :— •"  It  was  found  by  inquisition  that  one  York  had  reco- 
"  vered  in  an  action  upon  the  case  for  words  against  John. 
"  Allen,  five  hundred  pounds.  Afterwards  John  Allen  and£</- 
*'  -ward  Allen  purchased  land  in  fee,  and  aliened  it  to  John 
"  Death.  York  was  outlawed,  and  so  his  debt  became  for- 
"  feited  to  the  king.  The  question  was,  whether  the  king 
"should  have  execution  of  the  moiety  of  the  moiety  of 
"  John  Allen,  or  the  entire  moiety ;  and  it  was  resolved,  that 
"  he  should  have  the  entire  moiety,  although  York  should 
"  have  had  but  the  moiety  of  the  moiety;  but  the  debt  com- 
"  ing  to  the  king,  he  shall  by  prerogative  have  execution  of 
"the  entire  moiety.  And  it  was  adjudged  accordingly." 

This  case  is  supposed  to  bear  upon  the  question  now  be- 
fore the  Court,  in  as  much  as  after  stating  the  recovery,  it 
proceeds  to  say,  that  afterwards  the  two  Aliens  bought  the 
lands,  and  aliened  them.  Ot  this  circumstance  no  notice  what- 
ever is  taken  by  the  Court. 

It  will  be  found,  that  this  case  is  incorrectly  reported ; 
and  that  the  only  particular  wherein  it  may  be  supposed  to 
be  analogous  to  that  under  consideration,  is  stated  diffe- 
rently in  other  books,  and  even  by  Sir  George  Croke  himself. 
I  have  endeavoured  to  trace  it  through  all  its  different 
branches,  and  will  give  the  full  result  of  my  researches. 

It  first  appears  in  Cro.  Eliz.  50,  under  the  names  of 
Men  v.  York,  28  and  29  Eliz.  in  B.  .#.,  wherein  it  is  stated 


OF  PENNSYLVANIA. 

that  Tork  had  recovered  40OO/.  damages  against  Allen,  and 
had  died,  having  been  satisfied  of  1000/.  part  thereof;  and" 
the  question  raised  was,  whether  his  executor  could  support 
a  scire  facias  for  the  residue  of  the  judgment.  Of  this  the 
Court  doubted,  and  no  decision  is  stated  to  have  been 
given. 

It  then  in  the  following  year  in  the  same  book,  page  72, 
assumes  the  shape  of  a  scire  facias  upon  a  recognizance  by 
Mary  Tork  v.  Allen;  when  it  was  resolved,  that  if  a  pardon 
relates  back  to  a  day  before  the  exigent  was  awarded,  the 
outlawry  is  thereby  discharged. 

It  appears  again  in  the  Exchequer,  Pasch.  36  Eliz.  Saville 
133 ;  and  it  is  there  stated  that  Tork  had  recovered  5000/. 
damages  against  Allen,  that  Tork  was  outlawed,  and  the 
queen  had  granted  to  Francis  Anger  the  profits  due  on  the 
outlawry ;  and  it  was  held  that  the  patentee  might  sue  in 
his  own  name,  or  in  the  name  of  the  queen  at  his  election. 
Attaint  having  been  brought  in  C.  B.  of  the  verdict  in 
B.  ./?.,  the  record  was  removed  into  B.  R.,  and  there  affirm- 
ed ;  and  it  was  resolved  that  B.  R.  should  award  execution 
on  the  first  verdict.  Cro.  Eliz.  371.  Hil.  37  Eliz. 

In  Lane  2O.  Pasch.  4  Jac.  in  the  Exchequer,  Tork  and 
Allen  is  exhibited  with  very  different  features  from  those 
disclosed  in  the  report  in  Cro.  Jac.  5  IS.  It  is  there  said 
that  a  man  recovered  damages  in  an  action  upon  the  case 
against  B,  who  at  the  time  of  the  judgment  was  jointly  seized 
in  fee  with  C ;  and  that  after  that,  B  and  C  aliened,  and  the 
king  eight  years  after  the  outlawry  extended  the  moiety  for 
the  damages  recovered  against  B.  And  the  barons  were 
clear  in  opinion  that  the  king  should  have  it  in  extent;  for 
it  was  liable  to  the  extent  of  the  party  outlawed  before  the 
alienation,  and  when  it  comes  to  the  king  by  the  outlawry, 
although  it  be  after  the  alienation,  it  continueth  extendable 
to  the  king,  although  the  alienation  was  before  the  outlawry. 

The  reasoning  of  the  Court  here,  strongly  fortifies  the  sen- 
timent I  have  adopted.  Why  should  the  barons  rely  on  the 
liability  of  the  lands  to  the  judgment  previous  to  the  aliena- 
tion, if  independently  thereof,  the  premises  in  the  hands  of 
a  fair  purchaser  were  legally  subject  to  the  extent? 

The  King-  v.  Twine  and  others,  in  the  Exchequer,  Trin. 
5  Jac.  Cro.  Jac.  179«,  furnishes  the  fullest  detail  of  the 


143 


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V. 

SNIDER. 


144 


CASES  IN  THE  SUPREME  COURT 


1813. 


COLHOUN 
V. 

SNIDER. 


whole  case.  It  contains  the  recovery  of  4OOO/.  damages, 
the  outlawry  of  Tork  in  a  personal  action,  the  grant  to 
Anger  by  queen  Elizabeth  of  all  his  goods,  chattels,  and 
debts  to  the  use  of  Mary  York,  34  Regni  sui,  and  the  as- 
signment by  Anger  of  that  debt  and  judgment  to  Twine, 
and  then  proceeds  thus :  And  notwithstanding,  an  extent 
issued  in  the  king's  name,  to  extend  all  the  lands  which  the 
said  John  Allen  had  at  the  time  of  the  judgment,  and  the 
lands  in  the  possession  of  Twine  (which  he  purchased  after 
the  judgment)  were  extended.  The  terre-tenant  pleaded  the 
assignment  made  by  the  queen,  and  that  he  was  not  charge- 
able to  the  king.  Upon  demurrer  thereto,  it  was  adjudged, 
that  the  king  might  by  his  prerogative  assign  a  chose  in  ac- 
tion, and  that  the  assignee  might  sue  either  in  his  own  name 
or  the  king's,  and  that  the  land  should  remain  in  extent  for 
the  king.  In  2  Rol.  Abr.  807.  pi.  7,  the  same  case  is  shortly 
mentioned,  and  ruled  that  if  a  recoveror  of  damages  be  out- 
lawed in  a  personal  action,  the  king  shall  have  them,  and 
shall  have  execution  on  the  judgment.  Mich.  5  jfac.  in  Ex- 
chequer inter  Tork  and  Allen.  Per  Cur. 

I  have  been  thus  minute,  and  I  fear  tedious,  in  recapitu- 
lating all  the  views  wherein  this  case  presents  itself  in  the 
different  books,  from  being  told  that  it  is  much  relied  upon 
by  the  advocates  opposed  to  my  doctrine.  I  think  it  will  be 
found,  upon  the  most  careful  examination,  that  the  case  in 
Cro.  Jac.  513,  decides  no  other  principle,  than  what  must 
be  admitted  upon  all  hands  to  be  clear  law,  viz  :  that  where 
a  subject  is  outlawed,  the  king  shall  seize  all  the  land  of  ther 
conusor  or  obligor  to  such  outlaw,  although  a  private  indi- 
vidual upon  a  judgment  can  take  only  a  moiety.  The  dis- 
tinction is  founded  on  the  prerogative  of  the  crown.  5  Co. 
56  a.  Plowd.  243.  In  no  ramification  whatever  of  the  case, 
which  I  have  been  able  to  discover,  in  any  book,  has  any 
stress  been  laid  either  by  the  bar  or  Court,  on  the  doctrine 
that  a  judgment  per  se  will  bind  lands,  purchased  afterwards, 
though  aliened  bondjide.  Under  this  review  then  of  the  dif- 
ferent authorities,  I  trust,  that  without  hazarding  too  confi- 
dent an  opinion,  I  may  venture  to  assert,  that  the  doctrine 
contended  for  by  the  plaintiff  in  error,  is  at  least  highly 
questionable  in  the  English  law. 

I  now  proceed  to  consider  the  subj  ect  upon  another  ground 


OF  PENNSYLVANIA. 


145 


which  appears  to  me  more  material  in  our  present  inquiry, 
how  far  that  doctrine  would  be  consistent  with  our  munici-  ~ 
pal  laws  and  customs,  and  conducive  to  the  public  weal. 

We  have  two  acts  of  assembly  in  force,  directing  the  tak- 
ing of  lands  in  execution  for  the  payment  of  debts  ;  the  first 
passed  in  170O,  (1  Smith's  Laws  7.)  the  other  in  1705,  (Ib.  57.) 
which  as  to  the  point  before  the  Court  pursues  the  words  of 
the  first  law.  It  recites  that  "  to  the  end  that  no  creditors 
"  may  be  defrauded  of  their  just  debts,  due  to  them  from 
"  persons  who  have  sufficient  real  if  not  personal  estates  to 
"  satisfy  the  same,  Be  it  enacted  that  all  such  lands,  tene- 
**  ments  and  hereditaments  whatsoever,  within  this  province, 
**  when  no  sufficient  personal  estate  can  be  found,  shall  be 
"liable  to  be  seized  and  sold  upon  judgment  and  execution 
"  obtained."  And  by  the  4th  section  it  is  provided,  "  that 
"  the  vendee  of  the  sheriff  shall  hold  and  enjoy  the  lands 
"  sold  as  fully  and  amply,  and  for  such  estate  and  estates, 
tl  and  under  such  rents  and  services,  as  he  or  they  for  whose 
"  debt  or  duty  the  same  shall  be  sold,  might,  could,  or  ought 
"  to  do  at  or  before  the  taking  thereof  in  execution" 

It  is  the  obvious  meaning  of  the  legislature  herein,  that 
the  lands  directed  to  be  sold,  should  be  such  lands  as  the 
debtor  had  at  the  time  of  the  judgment,  in  defect  of  his  per- 
sonal property.  But  it  is  also  a  reasonable  construction,  that 
if  the  lands  to  which  the  debtor  was  then  entitled,  should 
be  insufficient  to  pay  the  debt  and  costs,  other  lands  which 
he  might  acquire  afterwards  either  by  descent  or  purchase, 
should  be  subject  to  the  execution  of  the  creditor;  provided 
that  no  injury  was  done  thereby  to  third  persons,  and  that 
the  lands  belonged  to  the  debtor  at  the  time  of  the  taking 
thereof  in  execution.  If  after  purchased  lands  should  happen 
to  be  sold  by  the  debtor,  before  an  execution  issued  upon 
the  judgment,  they  would  no  longer  be  his  property,  and 
would  cease  to  be  such  lands  as  were  subjected  to  his  exe- 
cution. No  creditor  could  rely  on  lands  as  a  fund  for  the 
payment  of  his  debt,  which  d;d  not  then  belong  to  his  debt- 
or. In  3  Black.  418,  419,  before  cited,  it  is  said  that  if  the 
goods  are  not  sufficient  to  pay  the  debt,  then  the  moiety  of 
the  defendant's  freehold  lands,  which  he  had  at  the  time  of 
the  judgment  given,  whether  held  in  his  own  name,  or  any 
other  in  trust  for  him,  are  also  to  be  delivered  to  the  plain- 

VOL.  VI.  T 


1813. 


COLHOUN 
V. 

SNIDER. 


146 


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1813. 


COLHOUN 
V. 

SNIDER. 


tiff  to  hold  till  the  debt  be  levied  :  And  yet  we  find  in  Hunt 
v.  Coles  et  al.  Corny.  Rep.  226,  that  when  a  trustee  had  con- 
veyed lands  before  execution  issued,  though  he  was  seized 
for  the  defendant  at  the  time  of  the  judgment,  the  lands 
could  not  be  taken  in  execution.  According  to  my  appre- 
hension, there  is  a  much  stronger  ground  for  the  exemption 
of  after  purchased  lands,  from  the  lien  of  a  judgment,  under 
the  words  and  spirit  of  our  law  of  1705  ;  for  such  lands  are 
not  the  defendant's  property,  either  at  the  time  of  the  judg- 
ment, or  the  execution  sued  out. 

Our  local  circumstances  differ  materially  from  those  of 
an  old  settled  country,  where  lands  being  improved  for  many 
yt ars,  their  prices  are  not  subject  to  great  fluctuation.  In 
Great  Britain  the  transfers  of  lands  are  comparatively  few 
to  what  they  are  amongst  us.  There  through  the  rights  of 
primogeniture,  the  instrumentality  of  strict  settlements,  and 
other  local  causes,  real  estates  continue  in  ancient  families 
for  generations.  It  is  much  otherwise  here,  where  lands  ra- 
pidly rising  in  price,  are  treated  as  a  specious  of  merchan- 
dize. Admit  for  argument's  sake  the  position  of  the  plain- 
tiff's counsel  to  be  correct,  as  to  the  law  of  England,  where 
the  moiety  of  the  land  is  held  by  the  creditor  until  his  debt 
be  paid,  the  land  is  afterwards  restored  to  the  fair  purcha- 
ser from  the  defendant;  but  if  that  principle  was  adopted 
here,  the  whole  estate  would  pass  to  the  sheriff's  vendee, 
freed  and  discharged  from  all  claim  or  pretence  of  right  by 
such  purchaser. 

The  strong  ground  however,  upon  which  I  rely  as  to  this 
branch  of  the  case  is,  the  practical  construction  of  our  acts 
of  assembly,  since  they  were  passed,  by  the  common  usage 
of  the  country.  I  have  never  known  or  heard  it  suggested, 
that  upon  sales  of  lands  the  public  offices  have  been  search- 
ed for  judgments  against  the  purchasers  prior  to  the  sale, 
or  against  the  sellers,  except  from  the  tinae  that  their  title 
commenced.  It  is  observed  in  Sugden  306,  that  it  is  not 
usual  to  search  for  judgments  against  the  vendor,  except  from 
the  time  he  purchased  the  estate :  which  by  the  by  furnishes 
proof  of  the  general  opinion  in  England,  as  to  the  point  in 
question.  If  the  rule  should  be  adopted  here,  that  judg- 
ments themselves  bind  after  purchased  lands,  though  tr  ms- 
ferred  bona  Jide^  the  situation  of  both  seller  and  buyer  is 


OF  PENNSYLVANIA. 

rendered  most  highly  perilous,  under  the  usual  mode  of 
transacting  such  business.  Judgments  against  the  seller  ante-" 
cedent  to  his  acquision  of  the  property,  are  let  in  against 
the  unsuspicious  buyer;  and  as  to  the  seller,  he  is  not  ren- 
dered secure  as  to  his  consideration  money,  by  taking 
either  a  mortgage  or  judgment.  The  estate  must  necessa- 
rily be  for  a  moment  in  the  buyer  before  he  can  execute  a 
valid  mortgage,  or  confess  a  judgment,  which  may  become 
a  lien  on  the  property  bought ;  but  eo  instantt  that  the  con- 
veyance by  the  seller  is  sealed  and  delivered,  the  lien  of 
the  old  judgment  against  the  buyer  attaches,  as  the  inevita- 
ble consequence  of  the  doctrine  contended  for.  These  would 
be  serious  evils,  and  must  have  been  severely  felt,  if  that 
doctrine  had  prevailed.  No  other  mode  for  the  security  of 
the  vendor  presents  itself  to  me,  where  the  old  judgments 
have  not  been  searched  for,  except  a  conveyance  of  the 
lands  subject  to  the  payment  of  the  consideration  money,  so 
that  the  estate  cum  onere  should  vest  in  the  vendee  at  the 
same  moment;  and  yet  in  the  whole  course  of  my  experi- 
ence, I  have  known  or  heard  only  of  two  instances  wherein 
this  precaution  has  been  used.  These  considerations  fully 
satisfy  my  mind  as  to  the  general  understanding  of  the 
people  upon  this  subject.  General  gross  negligence  and  in- 
attention to  individual  interest,  are  not  the  marked  charac- 
teristics of  mankind  in  a  social  state. 

But  the  question  is  not  undecided  amongst  us.  In  Run- 
die  and  Murgntroyd  v.  Etwein,  it  was  adjudged  by  a  full 
Court  in  bank,  that  mere  judgments  did  not  bind  after 
purchased  lands,  when  aliened  before  execution.  I  will 
not  say  that  the  point  was  fully  argued,  though  there  were 
counsel  of  great  ability  on  both  sides ;  but  I  have  no  diffi- 
culty in  asserting,  from  the  note  I  took  of  the  case  at  the 
time,  that  M'-Kean  Chief  Justice  pronounced  what  was 
then  understood  to  be  the  unanimous  opinion  of  the  other 
judges.  It  has  been  truly  said,  that  our  brothers  Shippen. 
and  Smith  afterwards  expressed  doubts  upon  the  English 
law,  respecting  the  liens  of  such  judgments ;  yet  I  think  I 
have  abundant  reason  to  conclude  from  copies  of  their  own- 
papers  now  in  my  possession,  that  their  minds  were  not 
changed  as  to  the  law  and  usage  of  Pennsylvania  on  this 
point.  The  inconveniences  of  a  different  doctrine  struck  them 


147 


1813. 


COLHOUN 
V. 

SNIDER, 


148 


CASES  IN  THE  SUPREME  COURT 


COLHOUN 
V. 

SNIDER. 


1813.        in  full  force.    I  wholly  omit  any  remarks  on  the  danger  and 
'  impolicy  of  changing  a  solemn  decision,  unless  the  interests 
of  society  should  imperiously  require  it.   We  know  that  the 
judgment  of  the  Court  of  Common  Pleas  here,  was  ground- 
ed on  our  former  decision. 

It  remains  only,  that  I  should  consider  a  difficulty  raised 
by  the  plaintiff's  counsel,  as  to  holding  inquisitions  upon 
lands  seized  in  execution,  and  the  security  of  sheriffs  upon 
sales.  It  has  been  asked  how  an  inquest  can  possibly  ascer- 
tain the  time  when  the  defendant's  title  accrued,  in  order 
to  distinguish  between  the  different  judgments  binding  on 
his  land  ?  I  answer,  by  the  public  records,  if  the  title  is 
derived  under  a  deed  or  will ;  but  if  by  descent,  it  is  as 
susceptible  of  proof  as  any  other  fact  whatever.  And  as  to 
sheriffs,  their  conduct  may  be  regulated  in  the  same  man- 
ner ;  and  it  is  obvious,  that  the  fewer  judgments  they  have 
to  discharge,  there  is  the  less  danger  as  to  the  misapplication 
of  the  money  arising  upon  the  sales. 

Upon  the  whole,  I  am  of  opinion,  that  the  judgment  of 
Samuel  Colhoun,  the  plaintiff  in  error,  did  not  continue  a  lien 
upon  the  house  and  lot  of  Michael  Immel;  and  therefore 
that  the  judgment  of  the  Court  of  Common  Pleas  of  Frank- 
lin county  be  affirmed. 

BRACKENRIDGE  J.  I  understand  the  question  in  this  case 
to  be,  whether  a  judgment  binds  lands  purchased  after  the 
judgment,  and  aliened  before  execution.  If  this  was  to  be 
taken  up  upon  principle,  I  should  find  no  difficulty;  for  ideo 
consideration  est  per  curiam  quod  recuperet,  is  the  entry  of 
the  judgment.  This  judgment  by  force  of  the  Statute  West- 
minster 2.,  13  Ed.  1.  c.  18,  charges  the  land  of  the  debtor, 
and  is  in  the  nature  of  a  general  security.  The  lands  are 
but  in  the  nature  of  a  pawn  or  pledge  to  secure  the  payment 
of  the  debt.  2  Black.  Comm.  289.  In  the  same  manner  lands 
descending  to  the  heir  were  a  pledge  for  the  debt  of  the 
ancestor,  and  where  no  assets  existed  it  might  be  levkd  of 
them,  and  they  might  be  sold  for  the  debt ;  and  this  was  the 
only  case  in  which  the  land  could  be  sold,  unless  upon  a 
recognizance  in  the  case  of  the  king.  Can  any  one  be  sup- 
posed to  pledge  a  thing  of  which  he  has  not  the  property  ? 
It  would  be  an  absurdity,  and  inconsistent  with  the  notion 


OF  PENNSYLVANIA. 


149 


of  a  pledge.  A  mortgage  is  always  spoken  of  under  the  idea 
that  it  is  a  specific  security,  whereas  a  judgment  is  but  a™ 
general.  But  as  under  a  mortgage  one  can  only  be  consi- 
dered as  pledging  what  he  specifies,  so  under  a  judgment 
whatever  property  he  has  at  the  time.  It  is  impossible  that 
the  judgment  can  attach  to  more.  It  cannot  enlarge  itself 
beyond  the  sum  recovered.  The  execution  must  pursue  the 
judgment  as  to  the  sum.  Costs  are  included  in  the  execution 
as  an  appendage  of  the  judgment.  Interest  is  added  by  the 
Court  under  the  idea  of  damages  for  the  detention  of  the 
debt  after  judgment;  that  is,  it  is  endorsed  on  the  execu- 
tion writ,  but  subject  on  motion  to  the  Court  to  allow  or 
modify.  Can  the  judgment  enlarge  itself  as  to  the  subject 
of  it  ?  It  can  bind  only  that  for  which  it  was  a  security ,  or 
what  was  pledged  under  it.  It  is  contrary  to  the  nature  of  a 
lien,  and  cannot  be  done.  But  lands  may  be  taken  in  execu- 
tion under  a  levari  facias  at  common  law,  as  to  present  pro- 
fits, or  under  an  elegit  by  the  statute. — Doubtless,  but  it  is 
by  virtue  of  the  execution,  and  not  of  the  judgment.  This 
is  the  ground  of  all  the  error.  For  the  books  speak  of  the 
judgment's  binding  after  purchased  lands ;  but  they  mean  no 
more  than  that  lands  purchased  after  may  be  taken  in  execu- 
tion under  the  judgment.  It  is  the  same  in  the  case  of 
goods  and  chattels.  If  a  cloak  is  pledged  to  one,  or  put  into  his 
possession,  and  he  obtains  judgment  under  a^.^a.,  he  may 
levy  not  only  the  cloak  in  his  possession,  but  the  coat  which 
he  has  not.  It  does  not  follow  that  the  coat  was  pledged, 
because  he  can  also  take  this.  The  precedent  of  the  execu- 
tion shews,  that  he  may  not  only  take  the  lands  that  were 
the  debtor's  the  day  of  the  judgment,  but  since.  A  scire 
facias  must  for  this  very  reason  be  to  the  terre-tenants  of 
the  land,  at  the  day  of  the  judgment  rendered  or  afterwards, 
because  the  lands  are  liable  to  be  taken  in  execution.  Yet 
why  a  scire  facias  to  them,  but  to  give  an  opportunity  of 
shewing  that  the  debt  is  satisfied;  for  by  virtue  of  the 
statute,  these  lands  are  liable  to  be  taken  in  execution,  being 
the  property  of  the  debtor  at  the  time  of  the  elegit  sued  out. 
But  may  they  not  shew,  not  only  that  the  debtor  had  not 
these  lands  at  the  day  of  the  judgment,  but  also  that  he  had 
them  not  at  the  day  of  suing  out  the  elegit  •?  This  is  the 
question  that  we  are  to  examine. 


1813. 


COLHOUJJ 
V. 

SNIDER. 


150 


CASES  IN  THE  SUPREME  COURT 


1815* 


COLHOUN 
V. 

SNIDER. 


There  are  authorities  that  seem  to  look  as  if  execution  could 
"  be  laid  upon  lands  bound  by  the  judgment  only.  2  Inst.  395. 
Et  medietatem  terrce  suce.  This  says  the  commentator,  is  to  be 
understood  of  the  one  half  of  such  land  as  the  defendant  had  at 
the  time  of  the  judgment,  or  at  the  recognizance  knowledged, 
unless  it  be  conveyed  away  by  fraud  or  covin  to  deceive  his 
creditors.  This  exception  under  the  unless,  shews  that  the 
words  respect  lands  conveyed  away  before  the  judgment,  and 
have  no  relation  to  lands  conveyed  away  after.  It  proves  there- 
fore nothing  upon  this  point,  though  it  may  be  cited  for  it. 
It  means  that  no  fraudulent  conveyance  of  lands  before 
judgment  shall  bar  the  lien.  Cro.  Car.  149,  is  sometimes 
cited ;  this  means  nothing  as  to  this  point.  It  is  only  that 
goods  are  bound  by  the  execution,  but  lands  by  the  judg- 
ment. But  it  does  not  follow  that  lands  are  not  bound  by  the 
execution  also,  when  levied  upon  them.  Coke  Lyttleton  102  is 
cited  as  conclusive ;  it  concludes  nothing.  It  is  only  that 
judgment  cannot  have  a  retrospect  to  lands  aliened  before 
the  judgment.  The  diversity  proves  this,  taken  between  lands 
by  descent  to  the  heir,  bound  before  the  judgment  in  right  of 
the  land.  Other  judgments  are  in  right  of  the  person,  and 
cannot  bind  before.  I  discard  these  authorities  as  having  no 
application  to  the  point.  But  I  put  it  upon  the  principle,  that 
the  judgment  cannot  extend  itself,  though  the  execution  may- 
take  more  j  and  it  is  with  a  view  to  this  only,  and  in  this 
sense,  that  the  judgment  is  said  to  bind.  This  is  said  abun- 
dantly in  the  books.  2  Cruise  on  Real  Property  73.  "  A 
"judgment  binds  all  the  freehold  lands  whereof  the  person 
"  against  whom  it  is  obtained  is  seized  at  the  time ;  and  no 
"  subsequent  act  of  the  debtor,  not  even  an  alienation  for  a 
"  valuable  consideration  to  a  purchaser  who  has  no  notice  of 
"  the  judgment,  will  avoid  it.  A  judgment  also  binds  all  the 
"  lands  which  are  afterwards  acquired  by  the  debtor."  He 
cites  no  authority.  He  is  not  correct.  It  is  not  the  judgment 
that  binds  after  purchased  lands,  but  the  execution  that  may 
be  levied,  and  this  is  ail  that  I  take  it  he  can  mean.  If  he 
means  more,  he  will  be  an  authority  so  far  as  he  goes.  It  is  an 
hypallage,  the  effect  for  the  cause.  The  writ  of  elegit  takes, 
and  therefore  the  judgment  is  said  to  bind.  But  the  elegit 
takes  by  force  of  the  statute  the  possession  of  the  lands,  just 
as  the  levari  facias  at  common  law  would  have  taken  the 


OF  PENNSYLVANIA. 


151 


present  profits  ;  and  the  levari  facias  would  not  be  confined 
to  lands  bound  by  the  judgment,  but  the  profits  of  land  not' 
bound  might  be  taken  as  chattels  under  a  fieri  facias  ;   but 
the  ownership  must  be  in  the  debtor.  A  judgment  as  against 
the  defendant  and  his  heirs,  binds  a   moiety  of  all  the  free- 
hold lands  and  tenements  of  which  he  or  any  person  in  trust 
for  him  were  seized,  at  or  after  the  time  to  which  the  judg- 
ment relates.      Tidd  850.     Will  it  be  too  much  to  say  that 
Tidd  is  incorrect  in  attributing  to  the  lien  of  the  judgment, 
what  was  the  effect  of  the  execution,  or  that  he  means  no 
more  ?  Let  him  be  supposed  to  mean  what  he  seems  to  state, 
and  to  attribute  to  the  judgment  virtute  lien,  what  it  ap- 
pears to  me  the  statute  13  Ed.  I.e.  18,  which  he  cites,  by  no 
means  warrants.  I  say  let  him  be  supposed  to  lay  it  down 
totidem  verbis,  that   after  purchased  lands,  though  aliened 
before  execution,  are  bound  by  the  judgment.  It  is  no  more 
than  Rolle  in  his    Abridgment   892,  totidem  verbis,  has  al- 
ready said.  "  It  may  be  laid  (execution)  upon  any  land  that 
he  has  by  purchase  since  the  judgment,  although  he  hath 
aliened  it  before  execution."    This  is  the  bull  by  the  horns, 
that  I  take.   What  is  his  authority?  He  cites  the  Tear  Bookt 
3O  Ed.  3.  The  point  there  was  whether  having  taken  an  elegit^ 
and  the  sheriff  returned  nihil,  a  capias  could  afterwards  be 
sued  out.  It  was  decided  that  after  the  elegi  taken,  he  could 
have  no  other   execution ;    a  decision  perfectly  erroneous. 
Hob.  57,    holds  the  law  to  be  clear  contrary,  and  speaks  of 
this  year  book  and  some  others,   as  that  "  concerning  them 
there  was  never  a  judgment  but  one."   Whether  after  pur- 
chased lands  aliened  before  the  execution,  could  be  taken  by 
the  elegit,  was  not  in  view  ;  nor  is  there  any  thing  said  from 
which  a  colour  of  inference  can  be  drawn,  save  a  dictum  of 
Finch.     The  inference  would  seem  to  have  been  drawn  by 
Rolle,  even  though  but  a  dictum;  but  having  the  words  be- 
fore me,  I  could  not  draw  it.     I  will  give  the  words  in  the 
Norman  law  French,  so    that  others  may  judge:   "Si,  al 
*tempus  del  judgement  rend,  il  avcra  aucune  terre,  mes  que  il 
"  av  alien  puis,  home  pouvoit  aver  execution  de  celle.  Et  si  il 
"purchase  terres  apres,  homme  avera  execution  de  celle" 
Which  I  translate,  "if  a  man  at  the  time  of  the  judgment 
"rendered,  shall  have  any  land,  but  hath  aliened  it  since,  he 
"  shall  have  execution  of  that;  and  if  he  purchases  land  after, 


1813. 


COLHOUN 
V. 

SNIDER. 


152 


CASES  IN  THE  SUPREME  COURT 


1813. 


COLHOUN 
V. 

SNIDER. 


"  he  shall  have  execution  of  that."  It  is  but  an  inference  from 
'this  dictum,  to  say  that  after  purchased  lands  aliened  before 
execution  shall  be  taken  by  elegit ;  and  whether  this  inference 
is  just,  there  is  no  other  evidence  but  that  of  Rolle  having 
made  it ;  and  yet  this  is  the  foundation  of  the  whole  law 
upon  it.  For  from  Rolle  it  is  handed  down  through  all  the 
reports,  and  30  Edw.  3.  is  cited,  because  he  cites  it.  But 
it  may  be  a  just  inference,  since  Rolle  seems  to  have 
thought  it  so ;  and  if  it  is  a  just  inference,  it  will  prove  that 
it  is  not  by  force  of  the  elegit,  that  after  purchased  lands 
are  taken,  but  by  virtue  of  the  judgment;  a  principle 
I  cannot  comprehend  as  grounded  upon  the  analogy  of 
law,  that  like  a  scorpion  a  judgment  can  expand  its  claws, 
and  contract  so  as  to  fix  what  it  has  embraced,  that  is,  bind 
the  pledge  originally  given  it,  and  open  to  take  more,  and 
shut  again.  But  can  it  be  presumed  that  Rolle  would  have 
made  this  inference,  had  he  not  understood  this  in  practice 
to  be  an  artificial  rule  of  law  at  the  time  he  wrote,  inde- 
pendent of  the  dictum  of  Finch ;  that  understanding  it  to  be 
the  rule  of  law,  he  had  the  more  readily  referred  to  the  dic- 
tum as  evidence  of  it,  or  the  more  hastily  made  the  infe- 
rence from  the  dictum  ?  It  may  have  been  the  law  as  under- 
stood, though  contrary  to  the  analogy  of  pledging ;  and  if  so, 
I  would  account  for  it  having  come  to  be  so  understood, 
from  what  was  done  in  taking  all  land  under  a  recognizance 
to  the  king,  that  had  been  in  the  debtor  at  the  time  or 
since  the  taking  the  recognizance,  even  though  not  at  the 
time,  but  since  the  recognizance,  and  aliened  before  execu- 
tion. Whether  this  was  so  or  not,  we  have  no  evidence  as 
to  what  was  the  law  before  the  Tear  Book,  or  before  the  time 
of  Rolle,  further  than  these  dicta  support. 

But  supposing  it  to  be  the  law,  I  would  resolve  it  into 
that  all  grasping  principle,  the  prerogative  of  the  king. 
For  at  the  common  law,  independent  of  lands  coming  to  the 
heir  by  descent,  which  might  be  sold  for  the  debts  of  the 
ancestor,  the  recognizance  to  the  king  was  the  only  judg- 
ment under  which  lands  could  be  sold.  The  king  having 
this  prerogative,  it  might  be  considered  but  an  incident 
to  the  prerogative  to  take  after  purchased  lands,  though 
aliened  before  execution;  and  this  having  become  a  principle, 
it  was  applied  in  the  case  of  common  persons,  when  by  the 


OF  PENNSYLVANIA. 


153 


statute  of  Westminster  2.  they  came  to  have'  the  power  to 
charge  lands  for  debt,  and  to  take  execution  by  the  elegit." 

Another  consideration  may  have  led  to  the  having  given 
this  extent  to  the  judgment,  even  by  the  adjudication  of  the 
Courts.  Subjecting  to  debts  under  the  judgment  was  fa- 
vourable to  alienation ;  and  the  greatest  extent  that  could  be 
given  to  the  effect  of  a  judgment,  was  within  the  policy. 
The  king  was  favourable  to  this,  and  the  judges  would 
seem  to  have  had  the  same  bearing.  "  A  free  power  of  aliena- 
u  tion  tended  to  reduce  the  power  of  the  nobility,  and  pro- 
"  portionably  to  increase  that  of  the  crown."  4  Reeve  135. 
"  The  barring  an  estate  tail,  induced  the  judges  to  give  way 
"  to  a  subtle  finesse  of  construction,  (for  such  it  undoubtedly 
"was)  in  order  to  shorten  the  duration  of  those  conditional 
"  estates.  Courts  had  so  long  before  as  the  reign  of  Edward 
"III.,  very  frequently  hinted  their  opinion  that  a  bar 
"  might  be  effected  upon  these  principles."  2  Black.  Comm. 
111.  For  upon  the  introduction  of  the  feudal  tenures  into 
England,  the  feudatory  was  not  only  prohibited  from  alie- 
nating his  land,  but  also  from  charging  it  with  the  payment 
of  his  debts,  because  this  might  tend  to  disable  him  from, 
performing  his  military  services.  The  goods  and  chattels 
of  the  debtor  therefore,  and  the  profits  of  his  lands,  were 
the  only  fund  which  the  law  allotted  for  the  payment  of  his 
debts.  Although  this  law  was  well  suited  to  the  situation  of 
a  warlike  nation,  yet  it  was  noways  for  a  trading  people, 
where  it  is  a  material  object  to  create  an  extensive  credit, 
which  can  only  be  done  by  making  lands  and  profits  subject 
to  the  payment  of  debts  ;  and  therefore  when  about  the  reign 
of  Henry  III.,  the  English  began  to  acquire  some  little 
foreign  trade,  the  inconvenience  of  this  doctrine  began  to 
be  felt.  2  Cruise  59.  Hence  it  is,  that  the  spirit  of  the  peo- 
ple, and  the  sense  of  the  nation,  together  with  the  policy  of 
the  crown,  could  not  but  give  a  determination  to  the  juris- 
prudence of  the  country.  "  Alienation  of  real  estate  was 
"  always  resisted  by  the  feudal  lords,  but  favoured  by  the 
"prince  and  the  people.  The  increase  of  liberty,  and  the 
"  growth  of  commerce,  pushed  the  spirit  of  unshackling 
"  estates,  and  the  judges  also  leaned  to  the  unfettering  trans- 
"  mission.  In  the  case  of  the  power  of  devising  lands,  so 
"loose  was  the  construction  put  upon  the  Stat.  32  Hen.  8. 

VOL.  VI.  U 


1813. 


CoLHOUN 

r. 
SNIDER. 


154 


CASES  IN  THE  SUPREME  COURT 


1813. 


COLHOUN 
V. 

SKIDEII. 


"  ch.  1.,  that  bare  notes  in  the  handwriting  of  another,  were 
""allowed  to  be  good  evidence  within  the  statute."  2  Black. 
375.  With  the  like  leaning  it  was  decided  by  the  judges, 
that  "  no  after  purchased  lands  will  pass  under  a  devise, 
"  unless  subsequent  to  the  purchase  or  contract,  the  devisor 
"  republishes  his  will."  2  Black.  378.  It  had  been  a  long 
struggle  on  the  part  of  the  king,  judges  and  people,  to  get 
lands  subjected  to  debts  in  any  way,  and  this  had  been  ac- 
complished in  part  by  the  stat.  of  13  Ed.  3.;  and  the  more 
the  lands  would  be  subjected,  it  was  in  advancement  of  the 
policy.  This  might  have  led  to  follow  the  prerogative,  and 
as  in  the  case  of  the  king,  to  take  all  lands  before  or  after,  in 
the  case  of  private  creditors.  Be  this  as  it  may,  it  would 
seem  to  have  been  the  understanding  of  the  law  commen- 
tators ;  for  Finer  takes  it  as  Rolle  has  done,  and  under  the 
head  of  execution  lays  it  down,  10  Vin.  568.  left.  Z.pl.  16., 
that  "  if  a  man  recovers  debt,  he  may  sue  execution  of  any 
"  land  which  he  had  at  the  time  of  the  judgment,  thought  he 
"  had  aliened  it  before  execution."  What  is  more,  under  the 
head  of  Lien,  vol.  15,  left.  A. pi.  l.,he  cites  a  case,  Carey  11, 
Crompton  63,  which  would  appear  the  strongest  of  all  pos- 
sible cases.  "  A  was  bound  in  a  statute  to  .fi,  and  one  C  lent 
'*  1OO/.  to  A)  with  which  A  bought  lands  and  assured  the 
"  same  to  C  for  his  10O/.  A  failed  in  payment,  B  extended 
"  that  land,  67  was  denied  help  in  chancery,  although  the 
"land  was  bought  with  his  money."  It  would  seem  there- 
fore to  be  the  law  of  England,  whether  originating  in  error, 
or  founded  in  policy.  But  we  come  now  to  consider  it  as 
the  law  of  Pennsylvania. 

What  is  there  to  justify  a  contrary  decision  ?  If  in  Eng- 
land it  has  become  a  rule  of  property,  and  estates  are  holden 
under  it,  it  cannot  there  be  changed  without  inconvenience. 
It  may  affect  those  who  have  taken  the  after  purchased  lands 
aliened  before  execution  j  who  have  taken  possession  by  elc- 
git.  It  may  affect  creditors,  who  looking  to  this  principle, 
may  have  counted  upon  the  fund  of  all  lands  being  bound, 
that  at  any  time  come  to  the  debtor  after  judgment,  even 
though  he  aliens  thtm  before  execution.  The  elegit^  giving 
but  a  temporary  possession  for  the  extinguishment  of  the 
debt  by  the  issues  and  profits,  cannot  affect  much.  But  still 
it  is  something  as  a  rule  of  property,  and  renders  it  less  easy 


OF  PENNSYLVANIA. 


155 


to  change  the  rule,  than  where  no  such  understanding  exists, 
or  rule  has  been  known  to  be  established.  The  reason  and 
policy  of  the  rule  also  in  some  degree  fail,  if  there  has 
been  any  thing  in  the  idea  that  it  was  the  offspring  of  a  more 
shackled  sale  of  lands  for  the  payment  of  debts.  If  there  has 
been  any  thing  also  in  the  notion,  that  it  received  counte- 
nance from  the  example  set  in  the  prerogative  of  the  king,  it 
will  not  be  continued  in  a  Commonwealth  where  kingly  pre- 
rogative is  not  favoured.  But  these  are  small  considerations. 
I  do  not  know  how  it  is  under  a  recognizance  sued,  whe- 
ther after  purchased  lands  aliened  before  execution  are  ta- 
ken ;  nor  is  it  material.  The  principle  consideration  must  be 
that  of  no  impediment  existing  in  Pennsylvania  to  the  sale 
of  the  whole  lands  for  debt,  but  that  of  the  law  of  seven 
years  extent ;  there  is  therefore  less  reason  to  extend  the  lien 
of  a  judgment.  But  the  tying  up  by  a  judgment  shackles 
alienation,  which  the  policy  of  our  law  favours,  and  this  may 
lay  a  substantial  ground  of  distinction  that  cannot  be  dis- 
puted in  this  case.  But  how  will  it  work  in  practice,  under 
the  law  of  the  seven  years  extent  ?  Before  land  can  be  sold 
an  inquisition  must  be  held.  But  the  inquisition  must  be 
held  upon  the  land  levied  on.  AH  judgments  may  be  shewn 
to  condemn  it.  What  is  there  in  that  argument  ?  I  can  see  no- 
thing. The  lands  levied  on  are  compared  with  the  judg- 
ments, and  none  other.  But  land  after  purchased  and  alien- 
ed before  execution,  may  be  levied  on.  It  is  the  very  ques- 
tion we  make,  whether  they  can  or  not.  But  it  will  behove 
the  creditor  to  distinguish  between  after  purchased  lands, 
and  lands  after  purchased  but  sold  before  execution.  On  a 
sctre  facias  sued,  the  terre-tenant  will  shew  this,  or  if  levied 
on  under  the  judgment,  the  court  on  motion  may  set  aside 
the  levy.  But  if  not,  it  is  at  the  risk  of  the  creditor  to  take 
such  lands,  and  it  is  his  look  out.  He  can  as  well  ascertain 
this  as  what  lands  were  sold  before  judgment.  A  convey- 
ance from  the  debtor,  will  as  well  appear  upon  the  books  of 
the  register,  as  a  conveyance  to  him.  If  a  judgment  creditor 
has  not  such  constructive  notice  from  a  registry,  it  may  be 
an  answer  to  the  purchaser  why  the  lands  may  be  taken  in 
execution.  But  the  sheriff  must  look  to  the  lien  of  every 
judgment,  and  on  the  sale  pay  over  the  purchase  money  ac- 
cording to  the  priority.  What  then  ?  I  can  see  nothing  in  the 


1813. 


COLHOUN 
V. 

SNIDER. 


156 


CASES  IN  THE  SUPREME  COURT 


1813. 


COLUOUN 
V. 

SNIDER. 


supposition  that  bears  upon  this  point.  It  is  supposing  him 
"to  be  bound  to  take  the  distinction  between  after  purchased 
lands,  and  lands  after  purchased  but  sold  before  the  execution, 
that  he  may  know  what  judgments  are  a  lien  on  this  or  that 
land.  It  is  the  date  he  must  look  at,  and  the  sum.  The  land 
that  he  sells,  must  be  considered  bound  by  judgments  prior 
to  the  date  of  that  judgment  on  which  he  sells.  But  I  deny 
that  he  has  any  thing  to  do  with  judgments.  He  is  to  sell 
according  to  the  exigency  of  his  writ,  and  afterwards  pay 
debt  and  costs,  if  the  sale  comes  up  to  that,  if  not,  what 
it  produces,  and  the  surplus  to  the  debtor,  except  in  the 
case  of  a  sale  under  a  first  judgment,  where  the  surplus 
may  be  claimed  by  a  subsequent,  and  on  notice  to  the  she- 
riff, and  application  to  the  Court,  it  will  be  so  applied.  It  is 
the  purchaser  that  is  to  look  to  the  incumbrances.  Caveat 
emptor.  It  is  his  affair  to  examine  the  lien  of  every  judg* 
ment,  and  the  amount  of  debt  and  costs,  and  to  bid  for 
the  premises,  what  over  and  above  they  may  be  worth.  For 
it  is  to  the  land  that  every  prior  judgment  creditor  will 
look,  and  is  not  affected  by  a  sale  under  a  judgment  subse- 
quent to  his.  Under  these  considerations  it  can  make  no 
difference  whether  the  rule  prevails  as  it  is  in  England,  or  is 
changed.  But  it  has  been  changed  in  Pennsylvania  by  a  de- 
cision, or  rather  the  decision  is  an  evidence  that  it  never  was 
a  rule  here.  Rundle  v.  Etw ein,  December  1795,  banco  Phila- 
delphia, it  was  decided.  It  was  not  the  only  point  in  the 
case,  but  it  is  reported  to  have  been  decided,  Chief  Justice 
M'-Kean  on  the  bench  ;  a  great  authority.  Having  therefore 
an  anchor  to  windward,  I  am  disposed  to  swing  round  with 
it,  more  especially  as  the  decision  best  accords  with  the  in- 
clination of  my  mind  upon  principle,  as  may  be  collected 
from  what  has  been  suggested.  I  will  acknowledge,  that  not 
a  single  authority,  cited  for  that  decision  as  reported,  when 
it  comes  to  be  examined,  gives  the  least  countenance  to  the 
decision  ',  and  there  is  no  argument  by  the  counsel  nor  rea- 
sons given  by  the  Court.  I  must  therefore  suppose  that  it 
must  have  been  upon  other  grounds  than  those  authorities 
that  the  Court  went.  It  must  have  been  upon  the  equivocal 
evidence  of  entry  and  precedent  in  the  English  books,  and 
the  obscurity  of  reports,  or  dicta  of  writers  conflicting  with 
principle,  analogy  and  all  reason,  or  it  must  have  been  from 


OF  PENNSYLVANIA. 


157 


V. 

SNIDER. 


an  examination  of  the  Tear  Books  from  whence  all  would  seem  1813. 
to  have  sprung,  or  it  must  have  been  from  something  in  the  COLHOUN 
law  of  Pennsylvania,  that  would  not  admit  of  giving  such 
extent  to  the  lien  of  a  judgment  here  as  in  England.  There 
is  one  principle  which  would  seem  to  make  a  difference.  A 
judgment  there  is  a  lien  upon  estates  at  law,  but  not  as  with 
us  "  on  every  kind  of  equitable  interest  in  lands,  every  kind 
"  of  right  vested  in  the  debtor  at  the  time  of  the  judgment." 
Chief  Justice  Tilghman.  3  Binn.  9.  As  this  makes  the  lien 
longer  in  one  way,  it  would  be  but  reasonable  that  it  should 
be  lopped  in  another.  If  it  takes  all  lands  in  which  the 
debtor  has  the  least  possible  interest,  it  might  be  confined  to 
the  taking  only  those  where  at  the  time  of  the  judgment  or 
the  execution  only,  he  had  an  interest.  I  cannot  comprehend 
how  they  manage  matters  in  England,  as  on  this  principle 
a  case  must  be  supposed  sometimes  to  occur,  where  a  ven- 
dee against  whom  there  is  a  judgment,  takes  a  grant  and 
gives  a  mortgage  in  security  of  payment;  it  must  be  that  no 
man  can  purchase  against  whom  there  is  a  judgment,  and 
give  such  mortgage,  for  the  judgment  must  intercept  the 
mortgage  and  cut  it  out.  There  is  in  the  nature  of  this  thing  a 
punctum  temporises  in  articulo  mortis  where  the  jus  accres* 
cendi  cuts  out  the  devisee.  In  the  order  of  time,  as  in  con- 
templation of  law,  there  must  be  a  priority.  The  taking  the 
grant  in  the  first  instance,  and  then  the  conditional  regrant- 
ing,  cannot  be  concurrent  acts,  or  considered  such.  It  is  an 
argument  against  the  extent  of  this  lien  in  England,  that  we 
find  no  case  in  the  books  where  such  difficulty  has  been 
raised.  Is  it  because  there  have  been  few  instances  where 
a  person  bound  by  a  judgment,  has  purchased  lands  and 
given  a  mortgage  ?  In  Pennsylvania,  where  the  settlement  of 
the  country  has  led  to  so  much  buying  and  selling  in  lands, 
it  would  be  in  the  way  of  this,  that  the  law  should  be  so  un- 
derstood that  no  one  having  a  judgment  against  him  could 
purchase  lands  and  give  a  mortgage,  or  at  least  that  no  one 
could  sell  to  such,  for  he  could  not  secure  himself  by  taking 
the  mortgage.  The  judgment  would  come  in  and  cut  out  his 
security.  Whether  that  case  turned  upon  the  law  therefore  as 
our  Judges  may  have  taken  it  to  be  in  1795,  in  England,  or 
whether  upon  the  law  as  inapplicable  to  our  situation,  is  not 
apparent,  there  having  been  no  argument  before  the  Court  on 


158 


CASES  IN  THE  SUPREME  COURT 


1813. 


COLHOUV 
V. 

SNIDER. 


this  point  in  the  manuscript  report  which  I  have  had  the  ad- 
vantage of  consulting,  and  the  reasons  not  appearing  upon 
which  the  decision  went.  Nevertheless  I  am  willing  to  abide 
by  the  decision,  for  I  think  it  right  upon  principle,  and  were 
it  even  a  new  case,  I  should  be  disposed  to  decide  the  same 
way.  For  as  to  all  that  can  be  collected  from  the  English 
books,  I  am  not  clear  that  it  was  originally  the  common  larv, 
and  much  less  that  it  was  a  principle  carried  with  us  in  our 
colonization.  That  trading  in  lands,  by  which  they  have  be- 
come almost  a  species  of  merchandize  like  goods  and  chat- 
tels, renders  it  inapplicable  to  our  circumstances.  I  think  so 
the  more  especially,  as  I  feel  a  repugnance  to  a  principle 
which  would  not  seem  to  have  had  originally  a  foundation 
to  support  it,  and  would  seem  from  what  has  been  hinted,  to 
have  crept  in  surreptitiously,  and  been  propagated  from  one 
reporter  to  another  until  it  came  to  be  taken  for  law.  Sup- 
posing it  to  be  the  law  of  England,  it  may  not  be  practicable 
to  eradicate  it  in  that  country,  it  having  become  a  rule  of 
property,  and  estates  having  passed  under  it,  even  though 
upon  investigation  it  should  be  evident  that  it  has  got  into 
the  system,  though  it  did  not  originally  belong  to  it ;  as  flies, 
or  other  insects,  which  have  been  embodied  when  the  gum 
or  mineral  oil  was  liquid,  and  cannot  be  got  out  when  be- 
come hard  without  breaking  the  amber.  For  as  the  poet 

sings, 

Pretty  in  amber  to  observe  the  forms 
Of  hairs,  or  straws,  or  dirt,  or  grubs,  or  worms  ; 
The  things  ive  know  are  neither  rich  nor  rare, 
But  tvonder  how  the  devil  they  got  there. 


Judgment  affirmed. 


r,n  i.v.< 

17sr391 
6t  262 
2w203 
6wM75 
2wsl28 
7  205 
33  441 
33  44H 
33  449 


OF  PENNSYLVANIA.  159 


OBERMYER  against  NICHOLS. 


1813. 


IN  ERROR. 


450 
73  _  October  4. 

466^TpHIS  was  an  action  of  covenant  in  the  Common  Pleas    where  a  cove- 

93      I 

537  A  of  Franklin  county,  by  Nichols  against  Obermyer. 
breach  laid  in  the  declaration  was  the  non-payment  of  rent  ;  deration  on  both 

i    i        i    /•       i  *ii  •    f        •  •  •  i  sides,  and  a 

and  the  defendant  pleaded  won  infregit  conventionem,  with  breach  maybe 


leave  to  give  the  special  matter  in  evidence. 

independent  cove- 
r-»       i  .    .      .~  .  ,  nant,  and  an  ac- 

On  the  trial  of  the  cause,  the  plain  tilt  gave  m  evidence  tion  may  be  main- 
certain  articles  of  agreement  under  seal  between  him  and  ^efendaftfo^a116 
the  defendant,  dated  the  13th  of  March  1807,  of  the  follow-  breach  of  his 

covenant,  without 
ing  import  :  averring  per- 


By  these  articles,  Nichols,  in  consideration  of  the  rents 
and  covenants  to  be  paid  and  performed  by  Obermuer.  leas-  articles  of  agree- 

...  *  .  *  ,         ...         ment  leased  a  mill 

eel  to  him  a  certain  grist  mill,  dwelling  house,  and  stabling,  &<-.  to  B,  for  four 
in  Franklin  county,  for  the  term  of  four  years  from  the  JJ^j?  J 
date.    Obermyer  was  also  to  have  certain  privileges  of  fuel,  rent  which  B 
pasture,  meadow  and  fruit  trees,  and  possession  was  to  be  pay^l^dt*  by 

delivered  on  the  1st  April  1807.     Nichols  on  his  part  cove-same  articles 
i        i     -i  i  i/..  i        i       11.        i  e  •    covenanted  to 

nanted  to  build  an  addition  to  the  dwelling  house  ol  certain  build  a  house  of 
dimensions,  and  of  a  good  quality,  to  furnish  boards  for 


making  a  counter  and  shelves  in  the  store-house,    which  adjoi 

-..  i.,  ,      i      house,  before  a 

Ubermyer  was  to  make  according  to  his  pleasure,  and  the  certain  day  after 


house  was  to  be  done  between  the  date  of  the  lease,  and  the  roe 
first  of  July  thereafter.    Nichols  covenanted  also  to  make  a  and  to 

v       i     a  i  -11  i  •  »  tain  improve- 

nusk  noor  to  the  mill,    and  certain    other    improvements,  ments  in  the  mill  ; 
which  were  to  be  completed  on  or  before  the  1st  of  Scptem-™™^*^ 
her  1807;  Obermyer  to  board  the  workmen,  to  be  allowed  a^e<ithemiii&c. 
dollar  a  week  for  the  board,  and  to  pay  Nichols  15  dollars  action  upon  the 
when  the  store-house  should  be  completed.     In  considera-^6™*  \[^ 
tion  of   the    premises,    Obermver    covenanted    to    pay  the  not  nfccessa'7  to 

ttVCl"  Ol*  pl'OVC  TMi* 

annual  rent  of  175/.  during  the  term,  with  a  proviso  that  he  formance  of  the 
should  be  at  liberty  to  quit  the  premises  before  the  expira-  3mJroveb;U"nif 
tion  of  the  term  upon  crivincr  lawful  notice:  to  grind  twot»atit  the  lan.i- 

r  ,        r  t  i  ...  lord  omitted  to 

tons  ol  plaster  annually  for  Nichols,  and  to  keep  the  mill  perform  the  cove- 
in  good  repair  at  his  own  expense.  S5KS±S, 

the  jury  might 

deduct  an  equivalent  from  the  rent 

Kent  carries  interest  from  the  time  it  is  due,  unless  from  the  conduct  of  the  landlord  it  may  be 
inferred  thnt  he  means  not  to  insist  on  it,  or  unless  he  acts  in  an  oppressive  manner  by  demanding 
more  than  is  due,  where  the  tenant  is  willing  to  do  justice,  or  there  are  other  equitable  circum- 
stances making  the  charge  of  interest  improper. 


160   '  CASES  IN  THE  SUPREME  COURT* 

1813.  The  plaintiff  further  gave  in  evidence,  that  the  defendant 

OBERMYER  entere<^  'nto  possession  of  the  premises  on  the  1st  of  April 

v.  1807,  and  remained  there  till  the  1st  of  April  1808  j  and 

NICHOLS,    that  the  plaintiff  built  an  additional  house  before  the  1st  of 

July  1807. 

The  defendant  gave  in  evidence,  that  the  plaintiff  did  not 
on  or  before  the  1st  of  September  1807,  make  the  improve- 
ments in  the  mill ;  and  that  the  house  built  was  not  as  good 
as  the  articles  called  for,  and  that  he  was  not  able  to  use  it 
as  beneficially  as  he  would  have  done,  if  of  the  quality  con- 
tracted for. 

The  plaintiff  then  shewed,  that  the  defendant  in  the  sum- 
mer of  18O7,  had  declared  his  intention  to  stay  no  longer 
on  the  premises  ;  and  that  the  improvements  which  Nichols 
was  to  make  in  the  mill,  were  not  essential  to  the  well 
going  of  the  mill. 

Whereupon  the  Court  charged  the  jury,  "  that  the  defen- 
a  dant  having  enjoyed  the  mill  and  premises,  all  the  other 
u  covenants  on  the  part  of  the  plaintiff  were  minor  and  su- 
44  bordinate,  and  not  going  to  the  essence  of  the  contract, 
"  nor  to  the  whole  of  the  consideration,  so  as  to  defeat  the 
"  rent  in  toto ;— that  in  case  they  or  any  of  them  were  not 
"performed  by  the  plaintiff,  the  jury  were  at  liberty  to 
"  defalk  in  damages  from  the  rent  payable  to  the  plaintiff,. 
"  whatever  they  might  think  just  and  conscientious,  in  like 
**  manner  as  if  the  defendant  had  brought  an  action  against 
"  the  plaintiff;  and  the  defendant  was  to  have  the  benefit  of 
"  the  aggregate  of  damages  on  the  different  breaches  alleged, 
"as  the  same  might  have  been  given  if  such  action  had 
"  been  then  trying  before  the  jury.  Interest  might  be  given 
"  from  the  time  the  rent  was  payable,  on  the  balance,  if 
"  any,  which  the  jury  might  find  payable  to  the  plaintiff." 
The  defendant  excepted  to  the  charge.  Verdict  for  the  plain- 
tiff 422  dollars  damages. 

The  cause  was  argued  in  this  Court,  at  the  last  term,  when 

y.  Riddle  and  Duncan  for  the  plaintiff  in  error,  contended 
that  the  charge  \vas  erroneous,  1.  In  saying  that  the  cove- 
nant to  repair  was  not  essential  to  the  contract,  which 
should  have  been  left  to  the  jury.  2.  In  saying  that  interest 


OF  PENNSYLVANIA.  161 

was  recoverable  upon  rent.    They  cited  Bantleon  v.  Smith,        1813. 

(a),  Cook  v.  Wise  (3),  1  Saund.  32O,  note  a.  OBEHMYER 

v. 

Hf-Cullough  argued  for  the  defendant  in  error,  in  support  J 
of  the  charge,  and  cited  6  Bac.  Abr.  631.,  Trial  A.;  1  Saund. 
320.,  note  b.c.;  1  Tidd Pr.  384. ;  Crawford  v.  Willing  (c), 
Albright  v.  -Pzc/S/tf  (</),  Kennon  v.  Dickens  (V),  Greenleafv. 
Kellogg  (/),  CVwte  v.  Robinson  (^-),  C7ar£  v.  Barlow  (h\ 
and  77te  Delaware  Ins.  Co.  v.  Delaunay  (t). 

Cur.  adv.  vult. 

This  day  the  judges  delivered  their  opinions  seriatim. 

TILGHMAN  C.  J.  This  cause  comes  before  us  on  a  bill  of 
exceptions,  to  the  charge  of  the  President  of  the  Court  of 
Common  Pleas  of  Fran&lin  county. 

Two  exceptions  are  taken  to  this  charge:  1.  That  the 
Court  ought  to  have  left  it  to  the  jury  to  decide,  whether 
the  matters  not  performed  by  the  plaintiff  were  so  essential, 
that  the  non-performance  of  them  bars  his  recovery.  2.  That 
the  jury  ought  not  to  have  been  left  at  liberty  to  give  inte- 
rest on  the  rent. 

1.  The  construction  of  writings  is  the  province  of  the 
Court.      It  was  therefore  for  the  Court  to  decide,  whether 
the  covenants  to  be  performed  by  the  plaintiff,  were  of  such 
a  nature,  that  without  the  performance  of  them,  there  was 
no  obligation  to  pay  the  rent  or  any  part  of  it.     And  it  ap- 
pears to  me  that  the  decision  was  right.    Because  the  entry 
of  the  defendant  was  to  precede  the  acts  to  be  performed 
by  the  plaintiff,  and  it  is  evident  that  the  defendant  would 
enjoy  a  considerable  benefit  from  the  lease,  independent  of 
those  acts.  Perfect  justice  therefore  was  done  to  the  defen- 
dant, when  it  was  left  to  the  jury  to  take  into  consideration 
the  non-performance  of  the    plaintiff's  covenants,  and   to 
deduct  from  the  rent,  the  amount  of  the  injury  which  the 
defendant  had  sustained. 

2.  With  regard  to  the  interest  on  the  rent,  it  is  to  be  ob- 
served, that  the  jury  were  not  directed  to   give  it  at  all 
events,  but  they  were  left  at  liberty  to  give  it  or  not  as  they 

(a)  2  JSina.  154.  (J)  1  Smith's  Laiua  381.  (.§•)  2  Johns.  595. 

(6)  3  Hen.  W  Mun.  483.      (e)  Taylor^  JV.  C.  Rep.  236.      (A)  4  Jolms.  183. 
(c)  4  Dall.  289-  (/)  2  Mass.  568.  (»)  3  Sinn.  295. 

VOL.  VI.  X 


162 


CASES  IN  THE  SUPREME  COURT 


1813. 


OBKKMYER 
f. 

NICHOLS. 


might  think  proper.  The  expressions  of  the  judge  are,  inte- 
"rest  may  be  given.  It  is  also  to  be  observed,  that  a  court 
and  jury  in  Pennsylvania,  stand  in  the  place  both  of  a  court 
of  common  law  and  a  court  of  equity  in  England.  On  the 
subject  of  interest,  we  have  departed  widely  from  the  path 
of  the  English  courts.  We  allow  interest  upon  open  ac- 
counts, where  by  the  usual  course  of  dealing,  or  by  express 
agreement,  a  certain  time  is  fixed  for  payment,  and  generally 
in  all  cases,  where  one  person  detains  the  money  of  another 
unjustly  and  against  his  will;  and  we  consider  it  as  a  com- 
pensation for  the  damage  sustained  by  the  plaintiff  in  con- 
sequence of  the  defendant's  breach  of  contract.  But  it  is  not 
allowed  as  matter  of  strict  legal  right,  as  in  bonds  with  a 
penalty  conditioned  for  the  payment  of  a  certain  sum  on  a 
certain  day,  where  in  case  of  non-payment  at  the  day, 
interest  from  that  time  runs  of  course.  In  many  instances 
a  balance  may  be  due  to  the  plaintiff,  and  yet  it  may  appear 
that  he  has  acted  so  unreasonably,  by  insisting  on  more 
than  was  due,  and  driving  the  defendant  to  the  expense  of 
a  suit,  as  may  well  justify  the  jury  in  refusing  any  allowance 
for  interest.  So  it  may  appear  from  the  conduct  of  the  plain- 
tiff, that  he  gave  the  defendant  reason  to  suppose  that  inte- 
rest was  not  expected,  and  this  conduct  may  have  induced 
the  defendant  to  delay  the  payment  of  the  principal.  Upon 
this  last  ground,  I  apprehend  the  non-payment  of  interest 
on  quit  rents  due  to  the  late  proprietaries  has  been  sus- 
tained ;  and  because  interest  was  not  paid  to  them,  it  has 
been  inferred  without  sufficient  consideration,  that  none 
sould  be  paid  to  individuals  who  were  in  very  different 
circumstances.  I  am  led  to  this  opinion  by  the  case  of 
Buchanan  executor  of  Smith  v.  Montgomery,  at  Nisi  Prius 
in  Cumberland  county,  April  1796.  It  was  then  given  in 
charge  to  the  jury  by  Chief  Justice  Shippen,  that  "  the 
"  practice  of  the  late  proprietaries  in  collecting  their  quit 
"  rents,  had  generally  established  the  usage  in  Pennsyfoa- 
"  nia,  that  interest  was  not  demandable  on  rent  charges,  or 
"  other  rents,  though  reserved  by  deed  ;  and  unless  unwar- 
"  rantable  and  vexatious  delay  had  occurred  in  withholding 
"  rents,  intei'est  was  not  properly  recoverable."  Taking  the 
law  as  here  laid  down,  ir  would  be  for  the  jury  to  judge 
whether  an  unwarrantable  delay  had  taken  place;  and  it 


OF  PENNSYLVANIA.  163 

seems  to  me  that  where  it  is  known  to  the  tenant  that  the        1813. 
landlord  wishes  to  receive  his  rent,  the  delay  of  payment  "^BERMYWR 
is  always  unwarrantable.     A  demand  of  payment  on  the  pre-  v. 

wises  would  put  the  matter  out  of  doubt,  and  it  would  be     NICHOLS. 
prudent  in  landlords  always  to  take  this  step.     The  princi- 
pal argument  against  interest  is,  that  the  landlord  has  power 
to  distrain,  and  by  not  exercising  this  power,  he  shews  that 
he  is  willing  to  give  time  for  payment.     I  am  by  no  means 
satisfied  with  this  reason.     It  is  an  abuse  of  the  landlord's 
benevolence.     It  should  rather  be  presumed  that  he  is  wil* 
ling  to  spare  the  tenant  the  expense  and  injury  arising  from 
a  distress,  without  relinquishing  his  claim  to  a  reasonable 
compensation  for  the  delay  of  payment.     There  is  no  more 
reason  for  saying  that  not  distraining  is  evidence  of  an  in- 
tent to  relinquish  interest  on  rent,  than  that  the  not  bring- 
ing of  an  action  is  evidence  of  an  intent  to  relinquish  it  in 
other  cases.    That  interest  upon  a  rent  charge  is  considered 
as  equitable  even   in  England,  appears  by  the  opinion  of 
Lord  Talbot  in  the  Countess  of  Ferrers*  case  (Cas.  Temp. 
Talb.  2.)  u  The  arrears  of  an  annuity  or  rent  charge,  says 
"  he,  are  never  decreed  to  be  paid  with  interest,  but  where 
"  the  sum  is  certain  and  fixed;  and  also  where  there  is  either 
"  a  clause  of  entry,  or  nomine  poence,  or  some  penalty  upon 
"  the  grantor  which  he  must  undergo  if  the  grantee  sued  at 
"law,  and  which  would  oblige  him  to  come  into  this  Court 
"  for  relief,  which  the  Court  will  not  grant  but  upon  equal 
"  terms,  and  those  can  be  no  ether  than  to  pay  the  arrears 
"  -with  interest  for  the  time  during  rvltich  the  payment  was 
"  withheld."     Now  the  clause  of  entry,  or  nomine  poence, 
makes  no  difference  in  point  of  equity,  it  only  serves  to 
give  jurisdiction  to  the  Court  of  Chancery;  and  when  the 
parties  are  before  the  Court,  and  the  tenant  asks  to  be  re- 
lieved from  the  penalty,  the  Chancellor  considers  and  de- 
crees according  to  the  real  equity  of  the  case.  In  the  United 
States  different  opinions  have  been  entertained  on  this  sub- 
ject.    In   Virginia  interest  is  not  allowed,  Cook  \.  Wise, 
3  Hen.  &?  Munf.  483.,  but  the  Court  were  divided,  two 
judges  against  one.   In  New  Tork  interest  is  allowed.  Clark 
v.  Barlow,  4  Johns.  183.     In  Pennsylvania  the  point  has 
never  bt  en  decided  in  this  Court.    At  Nisi  Prius  it  seems  to 
have  been  held  in  two  or  three  cases,  that  interest  should 


164 


CASES  IN  THE  SUPREME  COURT 


I81J 


OBERMYEU 

v. 
NICHOLS. 


be  allowed  from  the  time  of  the  action  brought,  or  of  clis- 
'tress  made.  Upon  the  whole,  there  is  nothing  in  the  way 
of  our  now  deciding  it  upon  what  shall  appear  to  be  the 
true  principle.  It  would  be  most  extraordinary  indeed,  if 
we  should  allow  interest  upon  an  account  for  goods  sold 
and  delivered,  where  by  the  custom  of  the  place  credit  was 
understood  to  be  given  to  a  certain  day,  and  deny  it  on 
rent,  where  by  the  express  agreement  of  the  parties  the  day 
of  payment  was  fixed.  I  therefore  think  that  rent  should 
carry  interest,  unless  from  the  conduct  of  the  landlord  it 
might  be  inferred  that  he  meant  not  to  insist  on  it,  or  unless 
he  acted  in  an  oppressive  manner  by  demanding  more  than 
was  due,  where  the  tenant  was  willing  to  do  justice.  There 
may  be  other  equitable  circumstances  making  the  charge  of 
interest  improper,  all  of  which  it  would  be  difficult  to  enu- 
merate. In  the  present  instance  I  am  of  opinion,  that  the 
consideration  of  interest  was  properly  left  to  the  jury,  and 
therefore  the  judgment  should  be  affirmed. 

YEATES  J.  I  entirely  agree  with  the  charge  of  the  Court 
below,  that  the  defendant  in  that  suit  having  enjoyed  the 
mill  and  premises  demised,  the  covenants  on  the  part  of  the 
landlord  were  minor  and  subordinate,  and  did  not  go  to  the 
essence  of  the  contract  so  as  to  defeat  the  rent  in  toto,  in 
case  they  were  not  performed  ;  but  that  the  jury  were  at 
liberty  to  defalk  in  damages  from  the  rent,  whatever  they 
might  think  just  and  conscientious  for  the  repairs  neglected 
to  have  been  made.  Where  a  covenant  goes  only  to  part  of 
the  consideration  on  both  sides,  and  a  breach  of  such  cove- 
nant may  be  paid  for  in  damages,  it  is  an  independent  cove- 
nant ;  and  an  action  may  be  maintained  for  a  breach  of  the 
covenant  on  the  part  of  the  defendant,  without  averring  per- 
formance in  the  declaration.  1  Sound.  32O,  Williams' s  note. 
Every  man's  feelings  would  revolt  at  the  doctrine,  that  a 
tenant  should  be  suffered  to  receive  the  profits  of  a  valuable 
mill  and  tract  of  land  for  a  whole  year,  without  making  any 
compensation  therefor  to  the  owner,  on  the  ground  that  he 
did  not  make  some  trifling  repairs  according  to  his  contract. 
All  that  he  could  in  common  honesty  require  in  such  a  case, 
would  be,  to  be  allowed  such  a  sum  out  of  the  rent,  as 
would  be  full  amends  for  the  loss  and  inconvenience  he  had 


OF  PENNSYLVANIA.  165 

been  subjected  to  by  the  want  of  such  repairs,  but  not  to  be 
discharged  absolutely  from  all  liability  to  his  landlord.  The  OBEKMYER 
jury  were  here  instructed  that  the  defendant  below  was  en-  v. 

titled  to  the  aggregate  of  damages  on  the  different  breaches  NICHOLS. 
alleged  by  him,  as  the  same  would  be  given,  if  the  defen- 
dant had  brought  the  suit  against  the  plaintiff  below  ;  and  it 
will  be  found  on  calculation  that  the  jurors  have  made  a 
liberal  allowance  therefor,  which  they  have  deducted  from 
the  rent.  In  this  I  can  see  no  error. 

It  would  seem  from  the  cases  in  the  English  books,  that 
interest  is  not  allowable  in  debt  for  rent,  2  Ld.  Raym.  774., 
C0m6. 243.,  2  /0n6/.428.,  2  Doll.  105,  notis,  nor  on  the  ar- 
rears of  annuities,  unless  under  particular  circumstances.  1 
Scho.  fc?  Lef.  303.,  4  Bro.  Cha.  Rep.  316.  The  Courts  of  our 
sister  states  differ  in  their  decisions  as  to  rent  carrying  in- 
terest. In  the  Supreme  Court  of  Appeals  in  Virginia,  it  has 
been  adjudged  that  a  landlord  was  not  entitled  to  interest  on 
the  arrearages  of  rent.  3  Hen.  fc?  Munf.  468.  500.  See  2  Call 
249.  253.  But  it  has  been  determined  in  the  Supreme  Court 
of  New  Tork,  that  in  an  action  of  covenant  brought  to  recover 
a  sum  certain,  and  payable  in  money,  the  landlord  is  entitled 
to  recover  interest.  4  Johns.  183.  The  question  in  this  state 
has  been  declared  by  us  fully  open  to  discussion.  2  Binn.  154. 
It  is  well  known  to  every  one  conversant  with  our  practice, 
that  we  have  not  adopted  all  the  British  decisions  on  the 
subject  of  interest.  In  a  variety  of  cases  I  cannot  reconcile 
my  ideas  of  distributive  justice  with  those  authorities.  It 
has  been  truly  said,  1  Campb.  53.  note,  that  it  would  fortu- 
nately be  a  very  difficult  matter  to  fix  upon  another  point  of 
English  law,  besides  interest,  in  which  the  authorities  are 
so  little  in  harmony  with  each  other.  In  England  the  net 
sum  is  only  recoverable  without  interest,  in  an  action  for 
money  had  and  received;  2  Burr.  1O05.,  1  Bos.  &  Put. 
307. j  even  though  there  be  fraud  in  obtaining  it.  1  Campb. 
129.,  2  Campb.  426.  The  contrary  has  been  repeatedly  held  in 
this  state,  and  also  in  New  Tork.  3  Games  266.  Where  goods 
have  been  sold  on  credit,  no  interest  is  recoverable  in  the 
English  Courts,  because  it  has  been  said,  that  the  sum  is 
not  liquidated  until  the  jury  find  the  value.  2  Bia.  Rep. 
761.,  3  Wils.  206.,  1  Barnes  151.  This  doctrine  has  been 
often  overruled  in  our  Courts.  4  Dall.  289,  note.  So  also 


166 


CASES  IN  THE  SUPREME  COURT 


V. 

NICHOLS. 


1813.  we  have  differed  as  to  allowing  interest  in  assumps'it  for 
OBERMYER  w°rk  and  labour,  1  H.  Bl.  305.,  1  Campb.  5O.j  and  where 
money  has  been  lent  without  note.  2Stra.  910.  In  an  action 
upon  a  policy  of  insurance,  the  assured  in  Westminster  Hall 
cannot  recover  interest,  upon  the  ground  of  its  not  being 
payable  at  a  certain  day.  1  Campb.  518.  The  opinion  of  Jus- 
tice Butter,  that  interest  might  be  recovered  in  such  a  case, 
has  been  disapproved  of  in  those  Courts.  Ib.  51.  And  Le 
Blanc  Justice  has  said,  that  the  debt  being  liquidated,  was 
not  now  the  rule  by  which  interest  was  recoverable.  2 
Campb.  417.  Our  uniform  practice  is  adverse  hereto,  and 
therewith  agrees  the  practice  in  New  York.  1  Johns.  315. 
Other  instances  might  be  cited  if  necessary,  to  shew  that 
we  do  not  adhere  to  the  English  course  of  decision,  upon 
the  subject  of  interest. 

Amid  this  collision  of  sentiment,  we  are  now  called  upon 
to  give  our  opinions  on  an  unsettled  question  of  great  mag- 
nitude, agreeably  to  our  sense  of  right  and  justice,  corres- 
ponding to  our  local  situation,  without  usurping  the  office 
of  legislation.  The  quit  rents  reserved  on  the  grants  of  the 
late  proprietaries  have  been  thought  to  give  a  tone  formerly 
to  the  public  mind  amongst  us,  upon  this  subject ;  but  this 
difficulty  has  ceased  by  their  abolition,  and  we  are  no  lon- 
ger in  trammels  on  that  score. 

It  is  objected  that  a  landlord  is  not  entitled  to  interest 
upon  his  arrears  of  rent,  because  he  might  have  distrained; 
and  should  not  be  permitted  to  lie  by,  and  let  the  interest 
accumulate.  The  objection  is  more  specious  than  solid. 

Admit  that  he  may  make  distress,  highly  injurious  to  his 
tenant,  cannot  the  latter  bring  his  replevin,  and  delay  the 
recovery  ?  And  cannot  a  creditor  bring  suit  on  his  bond  or 
other  instrument  or  contract  carrying  interest  ?  On  failure 
whereof  when  the  money  becomes  due,  he  is  restricted  from 
recovering  his  interest,  though  his  suit  be  commenced  years 
afterwards  ?  The  cases  then  are  precisely  the  same  in  truth, 
and  do  not  afford  a  rational  ground  of  distinction. 

The  advantages  arising  from  the  use  of  money  are  well 
understood.  Whoever  witholds  money  justly  due  to  ano- 
ther, is  guilty  of  an  immoral  act,  and  ought  to  make  full 
compensation.  Interest  is  the  usual  measure  of  damages  in 
such  a  case,  and  my  mind  cannot  be  satisfied  that  a  debt 


OF  PENNSYLVANIA. 


167 


has  been  fairly  discharged,  were  only  half  justice  has  been 
done.  I  will  not  use  the  strong  expressions,  that  in  all  cases 
interest  follows  the  principle  as  the  shadow  does  the  sub- 
stance, 1  Vez.  310.;  but  I  fully  adopt  the  principle  laid 
down  in  the  Court  of  King's  Bench  in  Robinson  v.  Bland, 
adtnr.  of  Bland,  2  Burr.  1086,  (see  I  Vez.  jr.  426.,  3  Vez. 
jr.  135.,  14  Vin.  448.,)  that  were  money  is  made  payable  by 
an  agreement  between  parties,  and  a  time  given  for  the  pay- 
ment of  it,  this  is  a  contract  to  pay  the  money  at  the  given 
time,  and  to  pay  interest  for  it  from  the  given  day  in  case 
of  failure  of  payment  at  that  day.  The  rule  is  bottomed  on 
the  immutable  principles  of  justice,  easily  capable  of  appli- 
cation in  every  instance,  and  peculiarly  fitted  to  our  local 
circumstances,  where  the  value  of  property  is  daily  rising 
with  great  rapidity. 

The  present  case  falls  clearly  within  the  rule  laid  down. 
The  certain  sum  of  175/.  was  stipulated  by  a  solemn  deed 
to  be  paid  on  a  given  daj',  viz.  the  1st  of  April  1808,  for 
one  year's  rent  of  the  premises ;  and  the  tenant  not  having 
complied  with  his  engagement,  I  am  clearly  of  opinion  that 
he  ought  to  pay  interest  for  his  breach  of  covenant,  and 
therefore  that  the  judgment  of  the  Court  of  Common  Pleas 
of  Franklin  county  should  be  affirmed. 

BRACKENRIDGE  J.  Forfeiture  of  the  feud  was  origi- 
nally the  penalty  on  not  performing  the  services,  in  other 
words,  the  non  payment  of  the  rents.  The  distress  of  goods 
and  chattels  on  the  land  substituted,  became  a  pledge,  and 
was  held  to  compel  payment.  No  question  of  interest  could 
arise  in  such  a  case,  for  the  remedies  were  effectual  or  con- 
sidered such,  to  compel  instantly  a  fulfilment  of  the  condi- 
tion of  the  tenure.  The  replevin  lay  at  common  law,  which 
on  the  application  of  the  tenant  to  chancery  he  could  obtain, 
when  for  any  reason  he  contt sted  the  lord's  right  of  taking 
the  distress.  But  to  make  the  remedy  more  expeditious 
both  for  the  sake  of  the  tenant  and  the  lord,  by  the  statute 
of  Marlbridge  c.  21.,  the  remedy  was  given  by  plaint  to 
the  sheriff,  who  in  his  county  court  could  determine  with- 
out delay ;  and  hence  it  was  that  no  question  of  interest  could 
arise,  in  the  nature  of  damages  for  the  detention  of  the  debt, 
because  it  was  presumed,  having  these  means  of  recovery. 


181: 


OBERMYER 
v. 

NICHOLS. 


168  CASES  IN.  THE  SUPREME  COURT 

1813.        the  distress  being  in  the  nature  of  a  festinum  remedium^ 
OBERMYER   tnere  could  be  no  delay. 

v.  By  the  statute  of  Westminster  2.  c.  2.,  it  was  further  pro- 

NICHOLS.     vided,  that  the  tenant  should  on  his  taking  a  replevin  give 
pledges  to  the  sheriff  to  return  the  distress  forthwith,  if  the 
plea  on  the  replevin  should  be  determined    against  him. 
This  was  a  further  security  that  no  delay  should  be  given, 
and  left  no  room  in  contemplation  of  law  for  a  demand  of 
damages  for  the  detention  of  the  rent.  But  the  pledges  were 
not  cattle,  for  these  could  not  be  brought  into  court ;  but 
pledges  in  the  nature  of  a  surety  to  whom  a  scire  facias  could 
issue,  which  was  a  process  to  bring  the  surety  into  court. 
But  by  the  condition  of  the  bond  into  which  this  surety  en- 
tered, (for  one  might  be  taken,  and  it  might  be  by  bond  even 
of  the  tenant  himself,  the  plaintiff  in  replevin,  the  bond  be- 
ing only  for  the  return  of  the  distress,)  the  condition  could 
not  carry  damages  beyond  the  value  of  the  distress  itself,  or 
compel  any  thing  more  than  the  compliance  with  the  writ  dp  re- 
torno  habendo,  when  judgment  on  the  replevin  had  been  a- 
gainst  the  tenant.  It  may  be  seen  therefore  from  the  history 
of  the  claim  of  rent,  how  it  happened  that  we  hear  nothing 
of  damages,  or  interest  which  is  in  the  nature  of  that  claim. 
Pledges  at  common  law  were  only  to  answer  in  an  amerce- 
ment to  the  king,  pro  f also  clamor  e  ;  and  when  by  the  statute 
a  bond  came  to  be  given,  it  does  not  seem  to  have  been  used 
for  any  purpose  but  that  of  procuring"  a  return.  But  for  the 
greater  security  of  persons  distraining  for  rent,  it  is  provided 
by  statute  11  Geo.  2.  c.  19.,  that  a  bond  and  two  sureties  shall 
be  taken  in  double  the  value  of  the  goods  distrained,  which 
bond  may  be  assigned,  "  and  the  avowant  may  bring  an  action 
"  in  his  own  name,  and  the  court  may  by  rule  give  such  relief 
"  to  the  parties  upon  such  bond  as  may  be  agreeable  to  jus- 
u  tice."  Would  the  court  grant  relief  in  such  cases  from 
the  penalty  of  bonds,  but  on  the  tenant  doirg  equity,  and 
paying  interest  for  the  time  the  lord  was  delayed  of  his  rent, 
and  this  in  lieu  of  the  amercement  originally  to  the  king  ? 
If  the  courts  of  law  in  England  have  not  done  this,  it  is 
what  they  would  seem  to  have  had  the  power  to  do.  For 
though  it  is  the  province  of  chancery  to  relieve  from  penal- 
ties, yet  in  this  case  it  is  given  to  the  courts  in  which  reple- 
vins are  triable,  and  in  which  the  bond  may  be  sued. 


OF  PENNSYLVANIA. 


169 


V, 

NICHOLS. 


A  number  of  years  before  this  period,  21st  March  1722,  1813. 
answering  to  9  Geo.  1.,  an  improvement  of  the  law  in  this  (JBERMYER 
particular  had  been  made  by  this  then  colony,  and  from 
which  this  11  Geo.  2.  c.  19.  has  been  in  a  great  measure 
taken,  and  contains  the  provision  totidem  verbis,  that  "  the 
"  Court  by  a  rule  may  give  such  relief  to  the  parties,  as  may 
"be  agreeable  to  justice  and  reason."  But  in  a  note  to 
Smith's  LoTvst  vol.  1.  381.  it  is  said,  "not  to  be  the  usage 
"  in  this  state,  to  allow  interest  on  rent ;  but  from  the  time 
"  the  landlord  distrains  or  sues  for  it,  it  is  customary  for  the 
"jury  to  make  such  allowance.  The  practice  is  right  and 
"  proper  in  itself.  Where  one  unreasonably  and  vexatiously 
*'  delays  another  from  the  recovery  of  his  just  debt,  the  least 
"compensation  he  can  make,  is  to  pay  interest  for  the  delay 
"  he  has  thus  given."  For  this  he  cites  manuscript  reports. 
Independent  of  the  remedy  by  distress,  an  action  of  debt  lay 
at  the  common  law,  when  the  rent  was  reserved  on  a  lease  for 
years ; "  why  not  for  rent  during  the  continuance  of  the  lease, 
"  on  freehold  leases,  the  reason  is  not  clear."  It  has  been 
accounted  for  by  suggesting  that  "  the  remedies  by  cessavit 
"  and  distress  were  sufficient."  Co.  Litt.  47  a.  Hargrove's 
note  4. 

By  the  8th  Anne,  the  action  of  debt  is  given  during  the 
continuance  of  an  estate  for  life  or  years.  Why  that  statute 
was  not  reported  by  us  to  the  legislature  as  introduced  here 
I  do  not  recollect.  It  would  seem  to  me  that  it  had  been  hi 
usage  to  bring  the  action  of  debt  in  such  cases,  and  whether 
this  by  force  of  that  statute  introduced,  or  by  the  action  at 
common  law  extended  to  such  cases  by  our  own  usage,  I  do 
not  know,  nor  is  it  material  to  my  purpose  for  the  present 
investigation.  I  had  taken  it  that  an  action  of  debt  for  rent 
might  have  been  brought  in  any  case.  Why  such  action  was 
never  brought  except  under  a  written  lease,  might  be  owing 
to  the  right  of  the  tenant  to  wage  his  law,  which  still  remains 
a  principle  of  our  jurisprudence,  and  the  technical  subtlety 
of  being  bound  to  prove  the  exact  sum  due,  &c.  The  proceed- 
ing for  rent,  has  been  usually  by  an  action  on  the  case  declar- 
ing in  assumpsit  on  a  parol  lease,  or  debt  on  the  penalty,  or 
in  covenant  on  a  writing  under  seal.  Has  it  ever  been  heard 
of,  that  in  debt  on  a  penalty  the  defendant  would  be  let  off, 
without  including  interest  on  the  rent  due,  by  the  order  of 

VOL.  VI.  Y 


170  CASES  IN  THE  SUPREME  COURT 

1813.        the  Court  ?  Has  it  ever  been  known  that  in  covenant  the  jury 
^OBEUMYER    would  not  include,  and  be  directed  by  the  Court  to  include, 
i>.  interest  by  way  of  damages,  unless  special  circumstances 

NICHOLS,  took  the  case  out  of  the  justice  of  such  finding?  In  assump- 
sit  on  a  parol  demise,  the  same.  Were  it  otherwise,  it  would 
not  be  pursuing  the  equity  which  the  act  of  21st  March 
1772  gives  under  a  proceeding  by  distress,  when  the  tenant 
ultimately  appearing  in  fault,  the  Court  will  relieve  on  the 
replevin  bond,  only  by  his  doing  that  which  to  right  and 
justice  shall  appertain.  Distraining  is  a  harsh  remedy,  and 
except  in  towns  and  cities  it  is  little  resorted  to,  and  this  may 
be  a  reason  why  it  should  be  the  usage  to  allow  interest; 
for  where  a  harsh  but  instant  remedy  is  waived  in  favour  of 
the  tenant,  equity  would  say  there  is  the  greater  reason 
to  allow  interest.  In  England,  equity  will  decree  interest 
upon  arrears  of  an  annuity  or  rent  charge,  where  there  is 
either  a  clause  of  entery  or  nomine  pwncc,  or  some  penalty 
upon  the  grantor  which  he  must  undergo  if  the  grantee  sued 
at  law ;  but  not  for  the  rents  and  profits  of  an  estate  where 
the  sum  is  uncertain.  Cases  Temp.  Talbot  2.  Interest  in  all 
cases  must  be  at  the  discretion  of  courts  and  juries,  except 
where  a  general  rule  can  apply  as  in  the  case  of  a  specific 
sum  due.  The  legal  interest  is  assumed  in  these  cases,  as  the 
measure  of  damages  for  the  use  of  money,  or  the  detention 
of  a  debt.  The  reason  was  absurd,  which  has  been  given  some- 
where, that  rent  shall  not  carry  interest,  because  it  is  itself 
interest.  It  is  in  lieu  of  profits  of  land,  and  so  is  interest 
upon  money  in  lieu  of  the  presumed  or  stipulated  profits  of 
it.  It  was  the  nature  of-military  or  socage  services,  and  the 
remedies  for  them,  that  precluded  interest,  or  rendered  the 
allowing  it  unnecessary  at  an  early  period  ;  and  it  required 
length  of  time  to  accommodate  new  rules  to  new  circum- 
stances. All  these  reasons  have  long  ceased,  and  in  this 
country  especially,  why  any  distinction  should  be  made  as  to 
rents  from  demands  of  any  other  nature,  I  do  not  preceive. 
Whether  allowable  in  the  case  before  us,  as  in  all  other 
eases,  may  depend  upon  the  circumstances  of  it.  There  are 
exceptions  to  al.  general  rules. 

I  shall  apply  myself  to  examine  the  question  whether  the 
judgment  ought  t  stand  or  be  reversed,  on  the  ground  of 
allowing  interest,  or  ior  other  reasons.  It  would  seem  to  be 


OF  PENNSYLVANIA.  171 

implied  in  the  charge  of  the  Court,  that  certain  covenants        1813. 
on  the  part  of  the  landlord  might  not  have  been  performed   OBEKMYER 
by  him ;  for  it  is  left  to  the  jury  to  say,  whether  or  not  v. 

they  hnd  been  performed.  But  at  the  same  time  these  cove-     NICHOLS. 
nants  are  stated  to  be  minor  and  subordinate,  and  not  going 
to  the  essence  of  the  contract,  nor  to  the  whole  of  the  consi- 
deration, so  as  to  defeat  the  rent  in  toto,  in  case  they  or  any 
of  them  were  not  performed  by  the  landlord.     It  ought  to 
have  been  left  to   the  jury  to  say,  as  well,  whether  these 
were  minor  and  subordinate,  and  not  going  to  the  essence 
of  the  contract,  as  whether  they  were  or  were  not  perform- 
ed.    The  judge  had  no  right  to  say  that  they  were  minor 
and  subordinate,  so  as  to  exclude  the  jury  from  a  conside- 
ration of  this,  which,  by  taking  it  upon  himself  to  lay  it 
down  as  a  matter  of  law,  as  he  would  seem  to  have  done, 
would  exclude.  But  it  is  more  material,  what  he  has  given 
in  charge  in  regard  to  what  respects  interest.     Who  made 
the  first  default  in  this  case  ?  The  landlord.  Certain  covenants, 
however  minor  and  subordinate,   he    had  not  performed. 
What  could  his  tenant  do  in  this  case  ?  Could  he  know  what 
to  tender  ?  That  would  be  taking  upon  himself  to  estimate 
the  deficiencies.  Did  the  landlord   offer  to  leave   ad  arbi-> 
trium  boni  viri  to  estimate  all  deficiencies  ?    As  the  phrase 
is  in  common  parlance,  did  he  offer  to  leave  it  to  men,  to 
say  what  should  be  deducted  on  this  account?    We  hear 
nothing  of  this.  The  tenant  was  justifiable  in  waiting,  until 
the  landlord  should  establish  a  claim  which  he  had  rendered 
questionable  as  to  the  extent,  by  his  own  act.  It  was  the  de- 
fault of  the  landlord,  which  rendered  it  necessary  to  have 
recourse  to  some  tribunal  private  or  public,   of  their  own 
choosing  or  otherwise,  to    ascertain  what  in  justice,  if  any 
thing,  was  due.     All  the  consequences  ought  to  fall  upon 
him  the  landlord,  and  at  least  the  lying  out  of  his  rent  if 
any  due,  until  that  should  be  ascertained.     Did  the  tenant, 
when  called  upon  by  a  judicial  tribunal,  or  otherwise,  affect 
delay,  or  procrastinate  by  making  use  of  the  forms  of  the 
law  to  gain  time.  We  hear  nothing  of  this.  I  see  therefore, 
no  obligation  on  the  tenant  to  pay  until  the  balance  was 
ascertained,  and  he  could  know  what  to  tender  or  pay.  Inte- 
rest upon  the  balance  from  that  time,  and  not  from  the  time 
the  rent  was  payable,  ought,  or  could  in  equity  have  been 


172 


CASES  IN  THE  SUPREME  COURT 


1813. 


v. 

NICHOLS. 


given  by  the  jury.  I  say  equity,  because  where  the  question 
of  interest  is  not  fixed  by  positive  law,  or  general  rule,  or 
by  the  express  stipulation  of  the  parties,  it  is  a  matter  of 
equitable  consideration  to  grant  it.  It  is  recoverable  at  the 
discretion  of  the  Court  or  jury. 

Putting  myself  in  the  place  of  the  tenant  in  this  case,  I 
cannot  but  feel  his  embarrassment  in  not  knowing  what  to 
pay,  or  how  to  free  himself  from  the  debt.    What  could  he 
do  with  the  money  in  the  mean  time  ?  Not  knowing  at  what 
time  he  might  be  called  upon  by  adversary  process,  to  have 
it  levied  on  him,  could  he  use  it  ?    The  more  natural  pre- 
sumption is  that  he  kept  it  by  him.     It  is  the  presumption 
that  he  ktpt  the  whole  rent  lying  by  him  the  whole  time 
ready  to  pay  it,  not  knowing  whether  the  Court  and  jury 
would  allow  him  to  defalcate  any  thing  in  lieu  of  the  breaches 
of  covenant  on  the  part  of  the  landlord.  In  this  case  it  might 
be  a  question  of  some  subtlety,  whether  in  consequence  the 
tenant  might  not  have  a  right  to  turn  the  tables  upon  the 
landlord,  and  demand  that  interest  be  allowed  him,  the  tenant, 
on  the  difference  between  the  rent  payable  and  the  balance 
found.   This  on  the  set  off.  For  it  is  the  legal  presumption, 
that  he  had  the  rent  ready  to  be  paid  at  every  instant  of  the 
time,  from  that  at  which  it  was  due ;  and  nothing  appears  to 
negative  this,  unles  a  presumption  which  might  arise  from 
his  being  a  man  in  such  business  as  might  require  the  use 
of  money,  and  render  it  productive  at  a  short  time  or  a  long. 
This  is  the  case  with  bankers  or  merchants,  or  it  may  be 
with  manufacturers  of  any  kind ;  but  not  with  a  trembling 
tenant,  upon  whom  a  small  rent  coming  unawares  at  the 
moment   not  provided  for,   might   sweep    away  his  small 
means,  and  break  him  up.     For  I  lay  it  down  as  a  general 
rule,  that  when  it  can  be  presumed  that  a  man  who  with- 
holds money,  has  made   use  of  it  in  the  mean  time,  it  is 
natural  justice  that  he  allow  for  the  use  of  it.     I  cannot 
presume  this  in  the  present  case,  nor  am  I  to  consider  as 
passing  for  nothing,  the  trouble  and  expense  this  tenant  has 
been  put  to  in  attending  court,  and  employing  counsel,  sa 
as  not  to  be  an  equitable  bar  to  a  demand  of  interest. 

It  is  the  gist  of  the  cause  with  me,  that  the  landlord  made 
the  first  default.  As  to  the  covenants  not  performed  being- 
minor  and  subordinate,  these  are  indefinite  terms.  De  mi- 


OF  PENNSYLVANIA.  173 

ntmis  non  curat  lex  is  a  maxim,  and  I  would  not  put  on        1813. 
spectacles,  to  look  at  breaches  in  matters  unsubstantial  and   QBERMYER 
of  no  great  amount  one  way  or  the  other.     But,  whatever  v. 

was  substantial  I  would  look  at;  and  putting  myself  in  the  NICHOLS. 
place  of  the  tenant,  I  would  consider  what  rendered  this 
contract  less  profitable  or  less  convenient  than  it  ought  to 
have  been.  It  is  of  the  utmost  consequence  in  point  of  mo- 
rals, that  the  contracting  parties  should  be  held  to  a  strict  per- 
formance, and  from  a  landlord  to  a  tenant  especially.  In  the 
case  of  Washington,  writing  to  an  agent  respecting  tenants, 
who  alleged  the  non  performance  of  something  which  on 
the  part  of  the  agent  ought  to  have  been  done,  "  do  them 
*' justice,  said  he,  and  give  them  heaped  measures."  This 
was  a  golden  saying,  and  worthy  of  a  great  mind.  But  it  is 
not  only  the  most  honourable,  but  always  the  safest  policy. 
No  man  can  prosper  in  life  without  a  disposition  to  do  all 
that  can  be  required  of  him  in  discharge  of  his  obligations 
to  men.  Even  with  this  disposition  of  mind  or  determina- 
tion, a  great  error  is  looking  all  on  one  side,  and  the  being 
blind  of  an  eye,  if  I  may  use  a  figure,  so  as  not  to  see  with 
equal  advantage  what  is  on  one  side  and  what  on  the  other. 
Some  men  are  of  this  cast  from  an  inordinate  self-love  and 
defect  of  judgment ;  but  it  is  the  policy  of  the  law  to 
correct  their  understanding  and  their  vision,  and  teach  them 
to  be  honest. 

Discite  justitiam  monit't,  et  non  temnere  divos. 
In  foro  conscientice  there  is  no  great  difference  between 
larceny,  and  defrauding  of  what  is  due  ;  and  what  can  we 
call  it  in  a  moral  point  of  view,  if  any  thing  is  to  be  done  as 
a  condition  precedent  in  the  nature  of  a  contract,  and  it  is 
not  done.  If  it  is  in  a  matter  at  all  substantial,  I  would 
strongly  incline  to  defeat  a  recovery,  or  resist  a  claim  on  the 
part  of  the  defaulter,  altogether.  In  the  present  case  I  would 
have  it  left  to  the  jury  to  say  whether  substantial,  and  if  so, 
that  the  landlord  should  recover  nothing.  The  yeomanry  of 
the  country  are  the  proper  judges  of  these  things.  A  judge 
may  be  well  skilled  in  law,  as  far  as  regards  abstract  princi- 
ples ;  but  as  between  landlord  and  tenant,  in  what  shall  be 
deemed  substantial  in  putting  the  premises  in  repair  in  par- 
ticulars specified,  and  whether  these  shall  be  considered 
substantial  or  of  minor  concern,  1  would  give  but  very  little 


174 


CASES  IN  THE  SUPREME  COURT 


1813.        for  his  notion.     Few  judges  have  been  tenants,  more  have 


v. 

NICHOLS. 


OBERMYER  ^een  landlords,  and  this  is  not  a  matter  I  would  leave  to 
them ;  at  least  I  would  prefer  upon  this  point  a  jury  of  the 
country.  What  though  the  tenant  in  this  case  had  given  no- 
tice, and  expressed  an  intention  of  relinquishing  the  premises 
at  the  end  of  the  term,  the  presumption  is  that  it  was  in 
consequence  of  these  defaults  on  the  part  of  the  landlord, 
and  goes  to  prove  him  deficient  in  what  he  undertook  to  do, 
It  is  true,  that  the  warmth  of  the  heart  is  not  always  a  guide 
to  the  judgment  of  the  head,  for  indignation  may  be  from  a 
mistake  of  facts  and  the  legal  inference  ;  but  it  would  srem 
to  me,  that  in  this  case  the  landlord  might  be  satisfied  in 
escaping  damages,  and  losing  the  rent.  At  all  events  I  would 
leave  it  to  a  jury  to  consider  this  under  all  circumstances, 
and  it  would  not  seem  to  me  that  in  this  case,  it  was  put  in 
point  of  the  law  to  the  jury,  so  much  to  the  advantage  of  the 
tenant  as  it  ought  to  have  been.  I  am  therefore  inclined  to 
reverse  the  judgment. 

Judgment  affirmed. 


BLACKBURN  and  another  against  MARKLE. 


Chambersburg,  IN  ERROR. 

^Monday, 

October  4.  T7' 

Upon  a  report    Ij  RROR  to  the  Common  Pleas  of  Huntingdon. 

of  referees  finding 
a  sum  <me  by  the 

defendant  'life         ^e  Part*es  having  na^  a  controversy  in  relation  to  an 

latter  cannot  en-  exchange  of  lands,    Blackburn    and    Confare  instituted  an 
ter  judgment  to       .  .         ,  .   .  .     ,  .    . 

recove?  the  sum,  ejectment,  m  which  by  consent  judgment  was  entered  for 

tion.iSH*  remed"  the  plaintiffs,  and  by  rule  of  Court  it  was  referred  to  three 
is  by  sdre facias,  men,  "  who  taking  into  view  all  the  circumstances  of  the 

or  perhaps  by  .  ,  .  . 

attachment.  transaction,  were  to  make  report  what  sum  was  to  be  paid 

"to  the  defendant,  the  plaintiffs  holding  both  properties 
"  mentioned  in  the  articles  of  exchange.  Articles  of  ex- 
"  change  to  be  delivered  up,  on  the  report  being  made  and 
"confirmed."  The  arbitrators  made  an  award  for  1,296 
dollars  46  cents  in  the  defendant's  favour,  upon  which  he 
entered  up  judgment,  and  issued  execution. 

The  question  was  whether  the  judgment  and  execution 
were  erroneous. 


OF  PENNSYLVANIA.  175 

•5".  Riddle  and  Duncan  for  the  plaintiffs  in  error,  contended        1813. 
they  were;  and  that  the  only  remedy  was  by  scire  facias  BLACKBURN 
under  the  defalcation  act  of  1705,  or  by  attachment;  but         etal. 
before  the  Court  issued  the  attachment,  or  granted  judg-  v> 

ment  on  the  sci.  fa.,  they  would  compel  the  defendant  to        ARI 
give  up  the  articles  of  exchange,  which  had  not  been  done* 

Huston  in  reply,  said  that  the  agreement  of  reference  was 
in  fact  a  new  action:  judgment  had  been  entered  in  the 
ejectment,  and  this  was  a  proceeding  entirely  collateral  to 
it.  In  what  form  could  the  scire  facias  have  issued  ?  How 
call  on  the  plaintiff  in  ejectment  to  shew  cause  why  he  did 
not  pay  money  to  the  defendant  ? 

TILGHMAN  C.  J.  This  agreement  was  entirely  collateral 
to  the  action.  It  would  have  been  better  to  have  entered  a  new- 
action,  in  which  the  defendant  should  have  been  plaintiff. 
Being  made  however  by  rule  of  Court,  the  party  injured  by 
non-performance  of  the  award,  might  perhaps  have  remedy 
by  attachment,  but  as  to  that  I  give  no  opinion.  That  is  the 
mode  by  which  reports  under  rules  of  Court  are  enforced 
in  England,  and  could  have  been  enforced  here,  but  for  an 
act  of  assembly,  which  authorizes  the  entry  of  a  judgment 
in  the  same  manner  as  upon  the  verdict  of  a  jury.  Act  for 
Defalcation,  1705.  But  suppose  that  upon  the  verdict  of  a 
jury,  a  sum  of  money  should  be  found  due  from  the  plain- 
tiff to  the  defendant.  At  common  law  no  judgment  can  be 
entered  for  the  defendant  to  recover  any  money  from  the 
plaintiff.  But  here  again  our  act  of  assembly  alters  the  com- 
mon law.  In  such  case  the  defendant  may  have  a  scire  facias 
against  the  plaintiff,  on  which  he  may  have  judgment  and 
execution  for  the  sum  found  in  his  favour.  Reports  of  re- 
ferees being  put  upon  the  same  footing  as  verdicts,  I  do  not 
see  in  what  manner  the  defendant  can  support  his  proceed- 
ings. If  his  case  falls  within  the  act  of  assembly,  he  should 
have  taken  a  scire  facias,  or  as  I  have  intimated,  perhaps 
he  might  have  had  remedy  by  attachment.  But  even  if  it 
had  been  a  proper  case  for  an  attachment,  the  Court  would 
not  have  awarded  it  without  inquiring  whether  the  party 
moving  for  it,  had  done  on  his  part  every  thing  which  he 
ought  to  have  done,  and  in  this  case  it  appears  that  some- 


176  CASES  IN  THE  SUPREME  COURT 

1813.         thing  was  to  be  done  by  the  defendant.     He  was  to  deliver 

BLACKBURN  UP  tne  articles  of  exchange.     Consider  the  matter  in  what 

etal.         view  you  will,  it  appears  to  me  that  the  judgment  and  exe- 

cution were  erroneous.  I  am  therefore  of  opinion  that  they 
MAUKLE.  g  reversed> 


YEATES  J.  and  BRACKENRIDGE  J.  concurred. 

Judgment  reversed. 


Chambersburg, 

The  Commonwealth  against  ALEXANDER 


October  4. 


Prisoner  dis-     TTABEAS  CORPUS  to  the  jailer  of  Franklin  county.  By 
SeTarrantTas          the  return  it  appeared  that  the  ntaer/Jtetf  Teach, 


issued  by  the  had  been  committed  by  a  precept  from  the  commissioners 
county  commis-  '  .  , 

•ionerstocoiiectaof  Franklin  county,  having  no  property  to  make  satisfaction 

edno^roSJng'of  a  fi«e  referred  to  therein.     The  precept  was  dated  the 

by  virtue  of  which  24th  of  February  1812,  directed  to  the  collector  of  Mont- 

it  was  issued  ;  nor  *  . 

was  any  shewn  at  gomery  township,  commanding  him  to  go  to  the  house  or 

if  theeprocledbgttne  several  persons  named  in  a  schedule  annexed,  of  whom 
of  a  court  martial  Teach  was  one,  "  as  delinquents  for  not  performing  the  late 

imposing  it,  had  r       .....          «    t         .  •       rr         i 

been  shewn,  the  "  tour  or  militia  duty  belonging  to  captain  Hayes  s  company 
SXrpHsoner6"  of  riflemen,  and  collect  and  pay  the  sums  with  which  they 
to  his  action,  and"  stand  respectively  charged  "  (48  dollars  each  person)  "  in 

not  have  decided 

summarily  upon  "  the  same  manner  as  the  county  tax  is  directed  by  law  to 
"be  collected  and  paid." 

Dunlop  for  the  prisoner,  argued  both  against  the  suffi- 
ciency of  the  commitment,  and  the  legality  of  the  imposi- 
tion of  the  fine. 

Chambers  contra. 

TILGHMAN  C.  J.  delivered  the  Court's  opinion. 

It  appears  from  the  return  to  this  habeas  corpus,  that 
Teach  is  held  in  prison  by  virtue  of  a  warrant  from  the 
commissioners  of  Franklin  county,  for  the  collection  of  a 
militia  fine.  The  warrant  contains  a  naked  precept  to  col- 
lect the  fine,  without  mention  of  any  proceeding  whatever, 
by  virtue  of  which  it  was  issued.  The  commissioners  have 
no  authority  to  issue  a  warrant  without  some  foundation, 
and  as  no  foundation  has  been  shewn  either  on  the  face  of 
the  warrant  or  otherwise,  although  the  commissioners  have 


OF  PENNSYLVANIA.  177 

had  notice  of  the  habeas  corpus,  it  is  the  opinion  of  the        1813. 
Court  that  the  prisoners  should  be  discharged  from  confine-     COMMON- 
ment.   It  will  be  understood,  that  we  pass  no  opinion  on  the      WEALTH 
legality  of  the  imposition  of  this  fine.    That  being  a  matter  v. 

in  which  many  persons  are  concerned,  we  should  think  it  ALEXANDER- 
most  proper  for  those  who  mean  to  contest  it,  to  make  it 
the  subject  of  an  action,  in  which  the  matter  may  be  fully 
inquired  into,  and  solemnly  decided. 

Prisoner  discharged. 


BROWN  against  SCHEAFFER. 

IN  ERROR.  -  Saturday 

October  9. 

TN  this    case,  which    was   a    writ  of  error  to    Franklin    if »  cause  be 

.  iii  r.  »        rr  referred  to  arbi- 

•*•  county,  it  "appeared  by  the  record,  that  bcheajfer  the  trators,  it  is  not 
plaintiff  below,  had  entered  a  rule  of  arbitration,  and  the  there'shouU/be 
defendant  not  attending  according  to  notice,  he  and  theanydedarat.ioi?5)r 

°  .  -         .       statement  filed  by 

prothonotary  named  arbitrators,  who,  at  a  meeting  of  which  the  plaintiff,  or 
the  defendant  also  had  notice  but  omitted  to  attend,  found  Xelw^uT11 

an  award  for   the  plaintiff.     The  award  simply  found  so  she.w  the  cause  of 

action  • 

much  money  for  the  plaintiff;  and  there  was  neither  decla- 
ration nor  statement  filed  by  the  plaintiff,  to  shew  what  was 
his  cause  of  action,  which  was  the  error  relied  upon  in  this 
Court. 

Chambers  and  Duncan  for  the  plaintiff  in  er^gr. 

Crawford  contra. 

TILGHMAN  C.  J.  The  plaintiff  in  this  case  entered  a  rule 
of  reference  in  an  action  on  the  case,  under  the  "act  regu- 
lating arbitrations,"  passed  iJOth  March  1810.  The  pro- 
ceedings were  all  ex  parte^  as  the  defendant  did  not  think 
proper  to  join  in  the  choice  of  the  arbitrators.  A  report  was 
made  in  favour  of  the  plaintiff,  upon  which  judgment  was 
entered,  and  the  error  assigned  is  that  there  was  no  decla- 
ration or  statement  filed,  by  which  the  cause  of  action  might 
appear  on  the  record.  At  the  opening  of  the  case,  I  was 
struck  forcibly  with  the  inconvenience  which  might  result 
from  such  proceedings,  and  I  am  still  sensible  of  them ; 
but  upon  considering  the  act  of  assembly,  I  find  no  power 

VOL.  VI.  Z 


178  CASES  IN  THE  SUPREME  COURT 

1813.        in  this  Court  to  remedy  the  evil.     The  law  has  introduced 

BHOWN      a  new  m°de  °f  trial,  by  which  the  proceedings  may  be  with- 

•v,  drawn  from  the  Court,  and  carried  before  arbitrators,  imme- 

SCHEAFFER.  diately  after   the    commencement  of  the  action.  It  is  not 

required  that  a  declaration  or  statement  should  be  filed  of 

record,  nor  are  the  arbitrators  required  to  keep  a  record  of 

tneir  proceedings. 

The  legislature  seem  to  have  supposed  that  no  injustice 
could  be  done,  because  either  party  might  appeal  to  the 
Court  in  which  the  suit  was  instituted,  and  then  the  action 
would  be  conducted  with  the  usual  formalities.  But  even 
supposing  both  parties  to  be  satisfied  with  the  award,  it 
may  be  of  great  importance  that  the  cause  of  action  should 
appear  on  record,  lest  another  action  should  afterwards  be 
brought  for  the  same  cause.  It  is  not  sufficient  however  for 
the  plaintiff  to  point  out  an  inconvenience.  This  Court  is 
vested  with  no  general  power  of  supplying  defects  in  the 
acts  of  the  legislature.  Still  it  is  always  to  be  expected,  that 
when  defects  occur  in  practice,  those  who  have  the  power, 
will  apply  a  speedy  remedy.  Before  the  present  system  of 
arbitration  was  introduced,  it  had  been  decided  by  this 
Court,  that  in  case  of  a  voluntary  reference,  judgment 
might  be  entered  on  the  report  of  the  referees  without  filing 
a  declaration.  That  principle  is  decisive  of  the  present  ques- 
tion. The  necessity  of  filing  a  declaration  is  no  greater  now 
than  it  was  then.  I  hope  a  law  will  be  passed,  obliging  the 
plaintiff  in  every  case  to  place  his  cause  of  action  on  the  re- 
cord. In  the  mean  time  is  will  be  prudent  for  defendants  to 
request  the  arbitrators,  to  call  on  the  plaintiff  for  a  rvritten 
statement  of  the  cause  of  action  to  be  signed  by  him,  and 
authenticated  in  such  a  manner  as  will  make  it  evidence,  in 
case  it  should  be  necessary  to  ascertain  it  at  a  future  time. 
My  opinion  re,  that  the  judgment  should  be  affirmed. 

YEATES  J»  and  BRACKENRIDGE  J.  concurred. 

Judgment  affirmed. 


OF  PENNSYLVANIA.  179 

1813. 


WHITE  against  The  Commonwealth 

IN  ERROR.  Saturday, 

*    78  October  9. 


. 

TT*  RROR   to    the  Oyer   and  Terminer    of   Cumberland    An  in(i;ctmpnt 
'  S  Hi  county,  to  bring  up  the  record  of  an  indictment  and  Jw-gng  th-ftthe 
judgment  for  murder.  certain  stone 

which  be  held,  in 
and  upon  the 

The  indictment  charged,  that  Edward  'White,  "  not  having  right  «He  of  the 

.  o  i_      ««  i       r  =v    /    hea<1  °'  l"e  ''e* 

"the  fear  of  God  before  his  eyes  &c.,  on  the  23d  ot  yw/z/ceaserj>  fc|(mio«s- 
"  1812,  with  force  and  arms,  at  &c,,  in  and  upon  one  ^wwrfJSJ^taw.S 
"Sampson,  in  the  peace  of  God  &c.  then  and  there  being,  that  the  defen. 
"  feloniously,  wilfully,  and  of  his  malice  aforethought,  did  stone  aforesaid, 
"  make  an  assault  ;  and  that  the  said  Edward  White,  with  a^^£dein 
"  certain  stone  of  no  value,  which  he  the  said  Edward  White  right  side  of  tHo 

,      .         ,  t     i  i    •  i  head,  feloniously 

"  m  his  right  hand  then  and  there  had  and  held,  in  and  upon&c.  did  strike, 
"the  right  side  of  the  head,  near  the  right  temple  of  him  ^rc^Jat  the 
"  the  said  Samuel  Sampson,  then  and  there  feloniously,  wil-  defendant  threw 

.         ,  i,.,  i    \  the  stone  and 

"  fully,  and  of  his  malice  aforethought  did  cast  and  throw  ;  struck  the  de- 
"  and  that  he  the  said  Edward  White  with  the  stone  aforesaid,ce^ln  -ndict. 
"  so  as  aforesaid  cast  and  thrown,  the  aforesaid  Samuelment  for  murder, 

.  ,  i         •    L        •  j         r    i_      i         i  ,      it  is  not  necessary 

Sampson,  in  and  upon  the  right  side  01  the  head,  near  the  so  to  describe 


"  right  temple  of  him  the  said  Samuel  Sampson,  then 

"there  feloniously,  wilfully  and  of  his  malice  aforethought,  it  be  murder  of 

,,.,.,  ,  ...  ,  .io  .the  first  or  second 

"  did  strike,  penetrate  and  wound,  giving  to  the  said  oamttf/  degree.  Nor  is  it 
"  Sampson,  by  the  casting  and  throwing  of  the  stone  a 


"  said,  in  and  upon  the  right  side  of  the  head,  &c.  one  mor-  should  conclude 
"  tal  wound  of  the  length  of  two  inches,  and  of  the  depth  of0f  the  act  of  as- 


"  one  inch,  of  which  said  mortal  wound,  the  said 

Process  must  go 

"Sampson  then  and  there  instantly  died;  and  so  the  juror*  in  the  name  of 
"aforesaid,  upon  their  oaths  &c.  say  that  the  said  &!)»&£/«  weaith  of  Pfenn- 

"  White,  him  the  said  Samuel  Sampson,  in  manner  and  form"y.ra'''v'.b"t 
7  ^  _  .  |l  ls  immaterial  in, 

"aforesaid,  feloniously  wilfully  and  of   his  malice  afore-  what  part  of  the 

"  thought,  did  kill  and  murder,  against  the  peace  and  dignity  mouwcaith  is  in" 
"  of  the  Commonwealth  of  Pennsylvania."  '  traduced,  so  that 

the  command  is 
given  in  its  name. 

Precepts  for  Courts  of  Oyer  and  Terminer  may  issue  under  tiie  private  seals  of  the  judges  ap- 
pointing such  Courts  :  No  seals  are  required  for  the  Courts  themselves. 

hi  a  precept  to  the  sheriff  to  summon  the  grand  and  petit  jury,  it  is  sufficient  to  command  him 
to  cause  to  come  before  the  judges  24  good  and  Icnvftil  men,  without  commanding  him  iu  what  man- 
ner they  are  to  be  drawn  or  selected. 

A  precept  to  the  sheriff,  commanding  him  to  cause  to  come  &c.  "  Qigood  and  lawful  men  of  the 
'body  of  the  county  of  C.  aforesaid,  then  and  there  to  inquire,  present,  do  and'  perform  tueli 
•  things  as  on  behalf  of  the  Commonwealth  shall  be  enjoined  them,  and  also  a  competent  .  imher 
«  of  sober  and  judicious  persons,  and  none  other,  as  jurors  for  the  trial  of  ail  issues  &c.,"  contains 
10  command  to  convene  the  petit  jurors  from  the  body  of  the  county  of  C.  And  therefore  if  it  docs 
101  appear  by  the  return  or  the  panel,  that  the  petit  jurors  in  fact  came  from  the  body  ol'thu  coun- 
ty, the  error  is  fatal. 


180 


CASES  IN  THE  SUPREME  COURT. 


1813. 


WHITE 

v. 

COMMON- 
WEALTH. 


The  precept  to  the  sheriff  began,  "  Cumberland  county 
'"ss.  I  jfames  Hamilton^  President  of  the  several  Courts 
"  of  Common  Pleas  in  the  ninth  district,  consisting  of  &c. 
"  and  by  virtue  of  my  office,  of  the  Court  of  Over  and  Ter- 
44  miner  and  general  gaol  delivery  for  the  trial  of  capital  and 
44  other  offenders  therein,  and  John  Creigh  and  James  Arm- 
44  strong,  esquires,  associate  judges  of  the  same  Court,  in 
"  the  said  county  of  Cumberland,  to  the  sheriff  of  Cumberland 
44  county,  greeting:  In  the  name  and  by  the  authority  of  the 
44  Commonwealth  of  Pennsylvania,  you  are  hereby  command- 
*'  ed,  that  you  cause  to  come  before  the  president  and  asso- 
44  ciate  judges  of  the  same  Court  in  the  county  of  Cumber- 
44  land,  or  any  two  of  them,  the  president  being  one,  on  the 
"  &c.  at  Sec.  in  &c.  24  good  and  lawful  men  of  'the  body  of  the 
44  county  of  Cumberland  aforesaid,  then  and  there  to  inquire, 
*4  present,  do  and  perform  such  things  as  on  behalf  of  the 
44  Commonwealth  shall  be  enjoined  them,  and  also  a  compe- 
"  tent  number  of  sober  and  judicious  persons,  and  none  other, 
"  as  jurors  for  the  trial  of  all  issues,  at  a  Court  of  Oyer  and 
44  Terminer  and  general  gaol  delivery,  which  number  shall 
"  not  be  less  than  48,  nor  more  than  60  :  And  also  that  you 
"  make  known  to  all  justices  &c.  of  the  said  county,  that 
"  they  be  then  and  there  with  their  records  &c.  &c.,  and 
44  that  you  yourself  and  your  ministers,  be  then  and  there  in 
44  your  and  their  proper  persons,  to  do  those  things,  &c.,  and 
"  have  you  then  and  there  this  writ,  together  with  a  panel 
"  thereunto  annexed,  containing  the  Christian  and  surnames 
"and  places  of  abode  of  those  jurors.  Given  under  our 
41  hands  and  seals,  at  Carlisle,  the  7th  of  December  1812." 

The  sheriff  at  the  day  returned  his  writ  with  a  panel  an- 
nexed,  containing  the  names  &c.  of  the  jurors,  and  the 
townships  where  they  lived,  but  in  no  place  mentioning  the 
county. 

The  defendant  being  found  guilty  of  murder  in  the  first 
degree,  various  objections  were  taken  to  the  indictment  and 
process,  by  his  counsel,  which  being  overruled  by  the  Court 
below,  and  sentence  of  death  having  been  passed,  this  writ  of 
error  was  with  the  consent  of  the  attorney  general  issued. 

Watts  and  Duncan  for  the  plaintiff  in  error,  took  the  fol- 
lowing exceptions  to  the  record. 


OF  PENNSYLVANIA. 


181 


1.  That  the  process  to  summon  the  grand  and  petit  jurors, 
was  unconstitutional,  because  it   was  in  the  name  of  the 
judges,  and  not  of  the  Commonwealth. 

2.  That  the  process  was  under  the  private  seals  of  the 
judges,  whereas   it  should  have  been  under  the  seal  of  the 
Court. 

3.  That  the  sheriff  was  not  commanded  to  have  the  jury 
drawn  according  to  law. 

4.  That  the  sheriff  was  not  commanded  to  cause  good 
and  lawful  men  of  his  bailiwick  to  be  summoned  as  petit 
jurors,  but  merely  sober  and  judicious  persons;  and  it  did 
not  appear  by    the  record  that  they  were  taken  from  his 
bailiwick. 

5.  That  the  indictment  was  absurd,  as  it  charged  the  of- 
fence to  consist  in  throwing  with  a  stone,   &c.  and  did  not 
lay  the  charge  of  striking,  positively  and  certainly :  and  that 
it  was  defective,  in  not  concluding  against  the  form  of  the 
act  of  assembly. 

Carothers  for  the  Commonwealth. 

TILGHMAN  C.  J.  Edward  White  has  been  convicted  of 
murder  in  the  first  degree,  and  judgment  of  death  passed 
against  him  by  the  Court  of  Oyer  and  Terminer  for  the 
county  of  Cumberland.  By  permission  of  the  attorney  gene- 
ral, the  record  has  been  removed  to  this  Court,  and  several 
errors  have  been  assigned,  on  which  we  are  now  to  deliver 
our  opinion.  The  exceptions  which  have  been  taken,  go 
both  to  the  indictment  and  the  process.  To  the  indictment 
it  is  objected,  first  that  the  offence  is  not  charged  with  a  suf- 
ficient certainty,  and  next  that  it  does  rot  conclude  against 
the  form  of  the  act  of  assembly. 

1.  It  is  said  in  the  indictment,  that  Edward  White,  -with 
a  certain  stone  which  he  held  in  his  right  hand,  in  and  upon 
the  right  side  of  the  head,  near  the  right  temple  of  Samuel 
Sampson,  feloniously,  &c.  did  cast  and  throw  ;  and  that  the 
said  Edward  White,  with  the  stone  aforesaid,  so  as  afore- 
said cast  and  thrown,  the  aforesaid  Samuel  Sampson  in  and 
upon  the  right  side  of  the  head  near  the  right  temple  of  him 
the  said  Samuel  Sampson,  feloniously  &c.  did  strike  &c. 
The  objection  is,  that  it  is  not  said  in  the  first  instance,  that 
White  threw  the  stone  at  all,  but  only  that  he  threw  with 
the  stone;  and  that  the  subsequent  averment  that  he  struck 


1813. 


WHITE 

v. 

COMMON- 
WEALTH. 


182 


CASES  IN  THE  SUPREME  COURT 


1813." 


WHITE 

v. 

COMMON- 
WEALTH. 


Sampson  with  the  stone,  so  as  aforesaid  cast  and  thrown, 
'does  not  amount  to  a  positive  assertion,  because  it  refers  to 
the  casting  and  throwing  as  aforesaid,  when  in  fact  it  had 
not  been  said  before  that  he  did  cast  and  throw  it.  The  ac- 
tion of  White  is  not  as  well  described  as  it  might  have  been  ; 
but  upon  the  whole  it  is  sufficiently  alleged,  that  he  threw 
the  stone  and  struck  Sampson  with  it.  Casting  and  throwing 
with  a  stone,  cannot  be  understood  as  using  a  stone  for  the 
instrument  of  throwing;  it  was  the  object  thrown,  and  the 
cast  or  throw  was  made  upon  the  right  side  of  the  head  of 
Sampson.  This  to  be  sure  is  an  awkward  kind  of  expression, 
and  not  very  good  grammar  ;  but  in  the  words  which  follow 
it  is  positively  asserted,  that  White  struck  the  deceased  with 
the  stone  cast  as  aforesaid.  Taking  it  altogether  then,  it 
sufficiently  appears  that  White  threw  a  stone,  with  which  he 
struck  Sampson,  and  thus  killed  him. 

2.  Where  a  statute  creates  an  offence,  the  indictment 
must  charge  it  as  being  done  against  the  form  of  the  statute. 
But  where  the  statute  only  inflicts  a  penalty  upon  that  which 
was  an  offence  before,  it  need  not  be  laid  to  be  against  the 
form  of  the  statute,  because  in  truth  the  offence  does  not 
violate  the  statute.  That  this  is  the  rule,  was  decided  in  the 
case  of  the  Commomvealth  v.  Searle,  2  Blnney  339.  The 
only  question  then  will  be,  was  murder  of  the  first  degree 
an  offence  created  by  act  of  assembly.  This  depends  on  the 
second  section  of  the  act  "  for  the  better  preventing  of 
"crimes  &c."  passed  22d  of  April  1794.- After  reciting 
that  the  several  offences  which  are  included  in  the  general 
denomination  of  murder,  differ  so  greatly  in  degree  of  atro- 
ciousness,  that  it  is  unjust  to  involve  them  in  the  same 
punishment,  it  is  enacted,  that  all  murder  which  shall  be 
perpetrated  by  means  of  poison,  &c.  &c.  shall  be  deemed 
murder  of  the  first  degree,  and  all  other  kinds  of  murder 
shall  be  deemed  murder  of  the  second  degree,  and  the  jury 
before  whom  any  person  indicted  for  murder  shall  be  tried, 
shall,  if  they  find  such  person  guilty,  ascertain  in  their  ver- 
dict whether  it  be  murder  in  the  first  or  second  degree  ;  but 
if  such  person  shall  be  convicted  by  confession,  the  Court 
shall  proceed  by  examination  of  witnesses,  to  determine  the 
degree  of  the  crime,  and  to  give  sentence  accordingly. 

Now  this  act  does  not  define  the  crime  of  murder,  but 


OF  PENNSYLVANIA. 


183 


refers  to  it  as  a  known  offence  ;  nor  so  far  as  concerns  mur- 
der in  the  first  degree,  does  it  alter  the  punishment,  which"" 
was  always  death.   All  that  it  does,  is  to  define  the  different 
kinds  of  murder,  which  shall  be  ranked  in  different  classes, 
and  be  subject  to  different  punishments;  It  has  not  been  the 
practice  since  the  passing  of  this  law,  to  alter  the  form  of 
indictments  for  murder  in  any  respect;  and  it  plainly  appears 
by  the  act  itself,  that  it  was  not  supposed  any  alteration 
would  be  made.  It  seems  taken  for  granted,  that  it  would 
not  always  appear  on  the  face  of  the  indictment  of  what  de- 
gree the  murder  was,  because  the  jury  are  to  ascertain  the 
degree,  by  their  verdict,  or  in  case  of  confession,  the  Court 
are  to  ascertain  it  by  examination  of  witnesses.  But  if  the 
indictments  were  so  drawn  as  plainly  to  shew  that  the  mur- 
der was  of  the  first  or  second  degree,  all  that  the  jury  need 
do,  would  be  to  find  the  prisoner  guilty  in  manner  and  form, 
as  he  stands  indicted.     In  the  case  of  the  Commonwealth  v 
Joyce  and  Mathias,  (Oyer  and  Terminer,  Philadelphia,  Fe- 
bruary 1808,  before  C.  J»  Tilghman  and  Judge  Smith)  who 
were  convicted  of  the  murder  of  Sarah  Cross,  it  was  moved 
in  arrest  of  judgment,  because  the  indictment  did  not  charge 
the  murder  to  have  been  committed  by  a  wilful,  deliberate, 
and  premeditated  killing,  as  expressed  in  the  act  of  assem- 
bly. But  the  motion  was  overruled,  and  the  murderers  exe- 
cuted.    I  am  therefore  of  opinion   that  the  indictment  is 
good. 

The  exceptions  to  the  process  remain  to  be  considered. 
The  precept  to  the  sheriff  is  in  the  names  of  the  president 
of  the  district,  and  two  of  the  associate  judges  of  the  Court 
of  Common  Pleas,  under  their  hands  and  seals.  The  style 
is,  "  the  judges  to  the  sheriff  greeting  :  In  the  name  and  by 
u  the  authority  of  the  Commonwealth  of  Pennsylvania,  you 
"  are  hereby  commanded  &c."  It  is  objected  1.  That  the 
style  should  have  been  u  the  Commonwealth  to  the  sheriff 
"  greeting."  2.  That  the  precept  should  have  been  issued 
under  the  seal  of  the  Court  of  Oyer  and  Terminer.  3.  That 
the  sheriff  should  have  been  commanded  to  have  the  jurors 
selected  and  drawn  in  the  manner  directed  by  law.  4.  That 
the  sheriff  is  not  commanded  to  return  petit  jurors  of  the 
county  of  Cumberland,  nor  does  it  appear  on  the  record  that 
they  were  of  that  county.  These  objections  shall  be  consi- 
dered in  their  order. 


1813. 


WHITE 

V. 

COMMON- 
WEALTH. 


184 


CASES  IN  THE  SUPREME  COURT 


1813. 


WHITE 

v. 

COMMON- 
WEALTH. 


1.  It  is  declared  by  the  present  constitution  of  Pennsyl- 
"  vania,  art.  5.  sec.  12,  that  "the  style  of  all  process  shall 
"  be,  the  Commonwealth  of  Pennsylvania  ;"  and  this  provi- 
sion is  copied  from  the  twenty-seventh  section  of  the  frame 
of  government  of  1776.  The  expression  of  the  style  being 
in  a  certain  way,  does  not  convey  a  precise  idea.  It  is  said 
by  the  counsel  for  the  prisoner,  that  the  process  shall  begin 
with  these  words,  and  in  general,  process  issuing  from  Courts 
of  record  does  begin  so;  and  yet  the  substantial  intent  of  the 
constitution  would  seem  to  be  satisfied,  if  the  command  is 
given  in  the  name  and  by  the  authority  of  the  Common- 
wealth, in  whatever  part  of  the  precept  that  command  is 
expressed.  In  the  same  sec. tion  of  the  constitution,  where  it 
is  intended  to  direct  the  place  in  which  particular  expressions 
shall  stand,  it  is  clearly  pointed  out,  "  all  prosecutions  shall 
"  conclude  against  the  peace  and  dignity  of  the  Common- 
"  wealth."  It  is  now  thirty-seven  years  since  the  formation 
of  the  constitution  of  1776,  and  during  all  that  time  the 
precepts  for  Courts  of  Oyer  and  Terminer  have  been  in  the 
same  form  as  this.  Courts  of  Oyer  and  Terminer  were  held 
soon  after  the  making  of  that  constitution,  so  that  the  con- 
struction first  put  upon  it  was  contemporaneous  with  the 
constitution  itself,  and  no  doubt  adopted  by  some  of  those 
who  were  framers  of  it.  A  construction  thus  commenced  and 
thus  continued  is  entitled  to  the  highest  respect.  The  im- 
perfection of  language  causes  much  uncertainty  in  writings 
which  have  been  drawn  up  with  the  greatest  deliberation.  It  is 
of  great  importance  that  the  construction  should  be  fixed  as 
soon  as  possible,  and  when  once  fixed,  it  should  be  adhered 
to,  unless  palpably  wrong,  and  productive  of  inconvenience. 
It  is  of  no  consequence  in  what  part  of  the  process  the 
Commonwealth  is  introduced,  so  that  the  command  is  given 
in  its  name.  This  is  done  in  the  precept  under  considera- 
tion, and  as  it  is  agreeable  to  constant  usage,  I  am  of  ^pi- 
nion that  it  is  sufficient. 

2.  Much  of  what  has  been  said  will  apply  to  the  second 
exception.  The  usual  form  has  been  under  the  seals  of  the 
judges.  Precepts  that  issue  or  are  supposed  to  issue  from  a 
Court  of  record  during  its  session,  are  under  the  seal  of  the 
Court.  But  this  is  not  the  case  with  precepts  for  a  Court  of 
Oyer  and  Terminer.  Emergencies  may  arise,  requiring  such 


OF  PENNSYLVANIA. 


185 


Courts  to  be  held  on  a  sudden.  There  are  no  particular  pe- 
riods appointed  by  law  for  the  holding  of  them.  The  judges  " 
may  appoint  them  at  their  pleasure,  and  this  appointment 
need  not  be  made  during  the  sitting  of  any  Court.  As  for  a 
seal,  there  is  no  occasion  for  a  particular  one  for  these 
Courts.  The  judges  of  the  Supreme  Court  have  no  seal  for 
the  Courts  of  Oyer  and  Terminer  held  by  them ;  and  this  is 
the  case  in  many  instances  with  the  judges  of  the  Common 
Pleas.  There  is  no  weight  therefore  in  this  objection. 

3.  The  command  to  the  sheriff  is,  that  on  a  certain  day 
he  cause  to  come  before  the  judges  twenty-four  good  and 
lawful  men  &c.     This  is  the  accustomed  and  the  best  form. 
Entering  into  details  is  dangerous,  because  something  may 
be  omitted,  and  it  is  unnecessary,  because  the  sheriff  must 
be  supposed  to  know  his  duty,  and  is  bound  to  perform  it. 
If  he  neglects  any  part  of  it,  those  whom  it  concerns  may 
set  the  process  aside. 

4.  The  fourth  and  last  exception  is  that  it  does  not  ap- 
pear that  the  petit  jury  came  from  the  body  of  the  county, 
and  if  well  founded  it  is  fatal.    The  command  to  the  sheriff 
is  that  he  cause  to  come  &c.  "  twenty-four  good  and  lawful 
"  men  of  the  body  of  the    county  of  Cumberland  afore- 
"  said,  then  and  there  to  inquire,  present,  do  and  perform 
"  such  things  as  on  behalf  of  the  Commonwealth  shall  be 
"  enjoined  them,  and  also  a  competent  number  of  sober  and 
"judicious  persons,  and  none  other, as  jurors  for  the  trial  of 
"  all  issues  fcfc."    Why  the  words  good  and  larvful  men,  ap- 
plied to  the  grand  jurors,  are  dropped,  and  sober  and  judi- 
cious persons  put  in  their  place  as  to  petit  jurors,  I  know 
not.  The  act  of  29th  of  March  1805,  does  indeed  direct  that 
jurors  shall  be  sober  and  judicious  persons  ;  but  the  words 
good  and  lawful  men  comprehend  that  and  every  other  re- 
quisite. I  do  not  think  however  that  this  change  of  phrase  is 
material;  but  are  the  words  "  of  the  county  of 'Cumberland?^ ', 
which  follow  "good  and  lawful  men",  connected  by  the  co- 
pulatives and  also,  with  the  words  next  succeeding  "  acorn- 
"  petent  number  of  sober  and  judicious  persons  &Pc.  ?"    The 
descriptions  of  the  two  sets  of  jurors,  are  each  complete  and 
independent  of  the  other ;  and  the  use  of  the  copulative  ex- 
pressions is  only  to  shew  that  the  sheriff  is  commanded  to 
cause  to  come  &c.  both  one  jury  and  the  other.   How  this 

VOL.  VI.  2  A 


1813. 


WHITE 

v. 

COMMON- 
WEALTH. 


186 


CASES  IN  THE  SUPREME  COURT 


1813. 


WHITE 

v. 

COMMON- 
WEALTH. 


form  crept  in  among  us,  I  am  at  a  loss  to  imagine.  I  have  ex- 
amined the  printed  entries  of  criminal  proceedings,  and  find 
them  quite  different.  They  particularly  mention  that  each 
jury  is  to  come  from  the  body  of  the  county.  The  return  of 
the  sheriff  makes  no  mention  of  the  county ;  he  endorsed  on 
the  precept,  "jury  summoned  as  within  commanded,  as  per 
"  list  annexed."  Annexed  is  a  list  of  the  jurors  mentioning 
the  townships  in  which  they  reside,  but  nothing  is  said  of 
the  county.  One  of  the  townships  is  Allen.  I  know  that 
there  are  townships  of  that  name  in  several  counties,  and  it 
may  be  so  with  others.  If  I  were  allowed  to  conjecture,  I 
should  have  no  doubt  but  that  the  whole  jury  was  of  Cum- 
berland county )  and  were  it  a  civil  proceeding,  I  would  try 
hard  to  get  over  the  objection.  But  -were  life  is  at  stake,  I 
dare  not  endeavour  to  be  ingenious.  Having  attentively 
considered  the  precept,  it  appears  to  me,  that  without  tortur- 
ing it  we  cannot  understand  that  the  petit  jury  were  to 
be  of  the  county  of  Cumberland.  I  am  therefore  of  opinion 
that  the  judgment  was  erroneous,  and  should  be  reversed. 

YEATES  J.  I  feel  myself  under  the  painful  necessity  of 
dissenting  from  the  opinion  delivered,  in  one  point. 

Amongst  the  errors  assigned  to  reverse  the  judgment  up- 
on the  conviction  on  this  indictment,  none  of  them  strike  my 
mind  with  difficulty,  except  that  which  arises  from  the  form 
of  the  precept  to  summon  the  juries.  I  do  not  conceive  it 
to  be  necessary  that  it  should  be  under  a  public  seal.  I  know 
of  no  law  which  provides  for  a  seal  of  the  Court  of  Over 
and  Terminer.  The  Judges  of  this  Court,  by  virtue  of  their 
offices,  are  justices  of  Oyer  and  Terminer  and  general  gaol 
delivery  in  the  several  counties;  and  yet  previous  to  the 
American  revolution,  as  well  as  under  the  former  constitution 
of  1776,  and  the  present  one  of  179O,  such  precepts  have 
issued  under  the  hands  and  seals  of  the  individual  justices  of 
the  Court,  and  many  convictions  have  taken  place  under  them. 

But  it  is  objected,  that  by  section  twelve  of  article  five  of 
the  present  constitution,  it  is  provided,  "  that  the  style  of  all 
*'  process  shall  be,  the  Commonwealth  of  Pennsylvania ;  and 
"  all  prosecutions  shall  be  carried  on  in  the  name  and  by 
"  the  authority  of  the  Commonwealth,  and  conclude  against 
"  the  peace  and  dignity  of  the  same." 


OF  PENNSYLVANIA. 


187 


It  is  true,  the  precept  here  commences  in  the  name  of  the 
president  of  the  district,  and  two  of  the  associate  judges  of 
the  court ;  but  it  is  directed  to  the  sheriff,  and  in  the  name 
and  by  the  authority  of  the  Commonwealth  of  Pennsylvania 
expressly  he  was  commanded  &?c.  This  appears  rather  a  ver- 
bal criticism  than  a  substantial  objection,  and  it  weighs  much 
with  me  that  it  pursues  the  form  used  in  this  Court  until 
within  these  few  years,  under  the  constitution  of  1790. 

The  greater  difficulty  remains  to  be  got  over.  The  sheriff 
was  commanded  that  "he  should  cause  to  come  &c."  The 
objection  is  that  though  the  sheriff  is  directed  to  summon 
the  grand  jurors  of  the  body  of  the  county  of  Cumberland^ 
yet  that  direction  does  not  extend  to  the  traverse  jurors.  I 
think  the  words  "good  and  lawful  men  of  the  body  and 
"  county  of  Cumberland"  by  fair  construction  may  refer  to 
the  persons  who  are  to  be  summoned  and  returned  as  jurors 
for  the  trial  of  all  issues.  The  directions  as  to  the  two  sets 
of  jurors  are  connected  together  by  the  conjunctions  and also , 
which  refer  to  the  body  of  the  county  from  whence  the  she- 
riff is  to  cause  those  jurors  to  come.  The  sheriff  has  sum- 
moned them  accordingly,  and  has  obeyed  the  injunction  of  the 
writ  by  annexing  a  panel  thereto  in  his  return,  containing  the 
Christian  and  surnames,  additions  and  places  of  abode  of  the 
jurors.  I  feel  every  tenderness  for  unfortunate  prisoners, 
that  they  should  be  subjected  to  no  difficulties  which  the 
law  does  not  permit;  but  I  do  not  feel  myself  justified  in. 
pronouncing  that  there  is  a  fatal  error  in  this  venire  facias, 
which  renders  the  judgment  illegal.  The  exact  correspon- 
dence of  the  precept  which  issued  in  the  present  instance,  to 
other  precepts  issued  by  the  Courts  of  Oyer  and  Terminer 
and  general  gaol  delivery  of  this  district,  operates  strongly  on 
my  mind,  that  I  should  not  declare  this  venire  facias  to  be 
illegal,  unless  upon  the  most  solid  and  substantial  grounds. 
I  am  strongly  inclined  to  think  that  this  venire  facias  for 
the  Court  of  Oyer  and  Terminer,  has  pursued  the  form  used 
by  the  judges  of  this  court  sitting  at  Oyer  and  Terminer  ; 
but  having  no  access  here  to  those  records,  I  would  not  be 
understood  to  express  a  confident  sentiment  thereon.* 

I  consider  the  indictment  as  inartificially  drawn,  but  not 


1813. 


WHITE 
v. 

COMMON- 
WEALTH. 


•  On  my  coming  to  Philadelphia,  and  searchingthe  prothonotary's  office  of  the 
Supreme  Court,  I  find  I  have  been  mistaken  herein. 


183 


CASES  IN  THE  SUPREME  COURT 


1813. 


WHITE 

v. 

COMMON- 
WEALTH. 


as  radically  defective.  It  states  the  felonious,  wilful  and 
"  malicious  assault  of  the  prisoner  upon  Sampson,  and  that 
with  a  certain  stone  which  he  then  and  there  in  his  right 
hand  had  and  held,  in  and  upon  the  right  side  of  the  head 
near  the  right  temple  of  the  said  Sampson,  then  and  there 
feloniously  wilfully  and  of  his  malice  aforethought  did  cast 
and  throw;  and  that  the  prisoner  with  the  stone  aforesaid,  so 
as  aforesaid  cast  and  thrown,  the  aforesaid  Sampson  in  and 
upon  the  right  side  of  the  head  near  the  right  temple  of  him 
the  said  Sampson,  then  and  there  feloniously  wilfully  and  of 
his  malice  aforethought  did  strike  penetrate  and  wound, 
giving  to  the  said  Sampson  by  the  casting  and  throwing  of  the 
stone  aforesaid,  in  and  upon  the  right  side  of  the  head  near 
the  right  temple  of  the  said  Sampson,  one  mortal  wound  of  the 
length  of  &c.,  of  which  said  mortal  wound  the  said  Samp- 
son then  and  there  instantly  died.  So  that  the  charge  is  laid 
positively,  and  not  by  way  of  recital,  and  that  the  party  died 
of  the  wound  occasioned  by  the  prisoner's  casting  and  throw- 
ing of  the  stone ;  and  the  throwing  of  the  stone,  though  in- 
elegantly expressed,  is  couched  in  words  of  sufficient  cer- 
tainty. 

It  has  been  further  assigned  for  error,  that  the  offence  of 
murder  of  the  first  degree  was  created  by  the  act  "  for  the 
"  better  preventing  of  crimes,  and  for  abolishing  the  punish- 
"  ment  of  death  in  certain  cases,"  passed  on  the  22d  April 
1794,  (3  Smith's  Laws  187) ;  and  therefore  the  crime  should 
have  been  laid  in  the  words  of  the  act  to  have  been  done 
•wilfully,  deliberately  and premeditatedly,  and  the  indictment 
is  defective  in  not  concluding  against  the  form  of  the  act  of 
assembly.  But  it  is  clear  that  this  law  creates  no  new  offence 
as  to  wilful  and  deliberate  murder,  nor  annexes  any  new 
punishment  thereto.  Different  degrees  of  guilt  exist  under 
the  general  crime  of  murder,  which  is  therefore  arranged 
under  two  classes  of  murder  of  the  first  and  second  degree. 
The  uniform  practice  since  the  act  was  passed,  has  been  to 
lay  the  offence  as  at  common  law;  which  has  been  decided 
by  the  judges  of  this  court  sitting  at  Oyer  and  Terminer  to 
be  sufficient,  in  the  case  of  the  two  negroes  who  were  exe- 
cuted a  few  years  ago  for  the  murder  of  an  ancient  woman 
in  the  city  of  Philadelphia.  The  true  distinction  on  this  sub- 
ject is  drawn  in  Respublica  v.  Searle,  2  Binney,  339. 


OF  PENNSYLVANIA.  189 

Upon  the  whole,  imperious  duty  constrains  me  to  declare,  1813. 

that  there  does  not  appear  to  me  such  error  on  this  record,  WHITE 

as  would  justify  me  in  reversing  the  judgment  rendered  v. 

against  the  prisoner.  I  entirely  assent  to  the  opinion,  that  too  COMMON- 
great  nicety  in  proceedings  is  a  reproach  to  the  criminal 
law  of  any  civilized  country. 

BRACKENRIDGE  J.  I  concur  with  the  Chief  Justice  in  the 
fullest  manner. 

Judgment  reversed. 


COOPER  and  another  against  HENDERSON. 

IN  ERROR.  Chambersburg, 

Saturday, 
October  9. 

THIS  was  an  ejectment  in  the  Common  Pleas  of  Adams    The  Courts  of 
county,  brought  by  Henderson  the  plaintiff  below,  to h °™™^er „„!}« 
recover  a  tract  of  land  in  right  of  James  Cooper  an  insol-  ^IV*?*™— ""jo* 
vent  debtor.  The  insolvent  was  discharged  by  the  Court  of  for  the  relief  ' 
Common  Pleas  of  Tork   county  on  the  5th  of  December^ 


1797,  and  on  the  same  day  assigned  "all  his  property  real  P°'.nt  new 
"and  personal,"  to  Jacob  Rudesell,  William  Gilleland  and  those  first  ap- 
George  Laskell,  who  were  appointed  by  the  Court  to  be  toS^andTo6 
trustees  for  the  benefit  of  his  creditors,  according  to  the  act00"1?61  the  first 

°  assignees  to  con- 

of  14th  February  1729  —  30.  The  property  in  dispute  wasvey  their  interest 
not  contained  in  the  schedule  delivered  into  Court  by  the  Ihe^re^'ppoiat- 
insolvent.  On  the  8th  of  June  1799,  a  certain  Georve  .£ernme.ntofnew 

f  assignees  by  the 

appeared   in   Court,  and  made   oath  that  the   asignees  ot  Court  does  not 
James  Cooper  had  refused  to  act  in  execution  of  their  trust  ; 


whereupon  the  Court  appointed  the  said  Kern  and  Hender-  them>  so  that 

•          i   •      .«•  >ii  r     i  the-v  may  support 

son  the  plaintiff,  as  trustees  in  the  place  of  those  who  had  an  ejectment. 
refused.  Kern  died,  and  this  action  was  brought  by  Hen-  an  insolent60' 
derson*  who  had  never  received  a  conveyance  of    James  debtor  may  insti- 

„  ,  .  .  tuteaneject- 

Cooper  s  property,  either  from  himself  or  his  asignees.          meat,  without 

Upon  the  trial  below,  the  defendants  counsel  prayed  theSJgJJjJj1 
Courts  opinion,  on  the  three  following  points,  on  all  ofre£°nl-   . 

....  ,  ?..  ,    •      r  r     u         I    •      -tr          i   ci     i      ^  h«  ass.gnmeut 

which  it  was  delivered  m  rayour  ol  the  plaintm,  and  n  led  of  an  insolvent 

of  record.  debtor  passes  all 

Ins  property, 

1.  Whether  the  property  for  which  the  suit  was  brought,  wi'^ter  men- 

£  }  'tioncilm  the 

passed  by  James  Cooper  s  deed  of  assignment,  not  having  schedule  annexed 
been  mentioned  in  the  schedule  of  his  estate,  exhibited  to  nl^is  I)etiliou>  or 


190  CASES  IN  THE  SUPREME  COURT 

1813.        the  Court  of  Tork  county,  at  the  time  of  his  petitioning  to 
COOPER  ~be  discharged. 

et  ail.  2.  Whether  the  trustees  appointed  by  the  Court  in  the 

v.  room  of  those  who  had  refused,  had  such  an  estate  vested 

'.NDERSON.  JQ  tjjem^  as  woui(i  enable  them  to  support  an  ejectment. 

3.  Whether  the  proceedings  were  not  erroneous,  because 
the  plaintiff  did  not  shew  either  by  his  writ  or  declaration, 
that  he  sued  in  his  own  capacity  as  trustee  ? 

In  this  Court  the  first  exception  was  given  up  :  but  the 
other  two  were  insisted  upon  by 

Maxwell  and  J.  Riddle  for  the  plaintiffs  in  error. 
Dobbins  contra. 

TJLGHMAN  C.  J.  after  stating  the  facts  and  exceptions, 
delivered  his  opinion. 

1.  The  first  acception  has  been  abandoned.    There  was 
nothing  in  it,  because  the  deed  of  assignment  contains  gene- 
ral expressions,  embracing  all  the  property  of  the  insolvent, 
whether  mentioned  in  the  schedule  or  not. 

2.  The  act  of  assembly  contains  no  provision  for  the  ap- 
pointment of  new  trustees  in  case  the  first  refuse  to  act,  or 
die.    It  seems  to  have  been  taken  for  granted,  that  there 
never  would  be  a  refusal  to  act,  and  with  proper  care  there 
never  could,  because  the  intended  trustees  might  be  con- 
sulted before  the  assignment  was  executed.    But  it  is  said 
that  the  assignment  having  been  executed,  it  is  necessary 
that  the   Court  should  have  the  power  of  making  a  new 
appointment,  otherwise  the  trust  could  not  be  caried  into 
effect.  There  certainly  would  be  a  great  convenience  in  the 
power  to  make  a  new  appointment,  and  I  have  no  doubt 
that  within  the  spirit  of  the  law  the  Court  possess  it ;  but 
it  does   not  follow  that  the  estate  shall  be    vested  in  the 
second  trustees,  without  a  conveyance  from  those  persons 
in  whom  it  had  been  vested  by  the  assignment.  There  can 
be  no  necessity  for  that,  because  there  is  no  reason  to  pre- 
sume that   such   conveyance  would  not  have  been  made  if 
the  Court  had  ordered  it ;  or  even  without  such  order,  if 
application  had  been  made  to  the  assignees,  and  informa- 
tion given  them  of  the  new  application.    In  England  the 
estate  of  a  bankrupt  becomes  vested  in  the  commissioners, 


OF  PENNSYLVANIA.  191 

by  the  commission  of  an  act  of  bankruptcy,   ipso  facto*        1813. 
But   this  is  by  the  express  provisions  of  an  act  of  parlia-      COOPER 
ment.     Our  act  of  assembly  directs  the  conveyance  to  be         et  al. 
made  by  the  insolvent  debtor  himself.     But  suppose  the  as-  v- 

signees  should  refuse  to  act,  and  also  refuse  to  execute  a  "ENI)ERSO 
reconveyance  ?'  If  the  Court  have  power  to  order  a  convey- 
ance, they  have  power  to  compel  obedience  to  their  order.  If 
they  have  no  power  to  make  the  order,  the  matter  is  at  an 
end.  That  point  however  is  not  before  us.  It  does  not  ap- 
pear that  the  assignees  in  this  case,  ever  refused  to  convey 
to  the  plaintiff,  or  were  ever  applied  to  for  that  purpose. 
The  plea  of  necessity  therefore,  on  which  the  plaintiff  has 
rested  his  case,  falls  to  the  ground. 

3.  All  the  cases  cited  by  the  plaintiff's  counsel,  in  which 
the  person  bringing  an  action,  has  been  obliged  to  shew  in 
his  writ  of  declaration,  the  right  by  which  he  brought  it,  are 
of  personal  actions.  But  it  is  not  so  in  suits  for  the  recovery 
of  land.  Our  ejectments  are  regulated  by  a  late  act  of  as- 
sembly, which  prescribes  the  form  of  the  proceedings,  and 
the  plaintiff  has  pursued  it  word  for  word.  I  am  of  opinion 
therefore,  that  in  this  respect  all  is  right.  But  as  the  plain- 
tiff in  error  has  made  good  his  second  point,  the  judgment 
must  be  reversed,  and  a  new  trial  ordered. 

YEATES  J.  the  counsel  of  the  plaintiffs  in  error  have 
very  properly  abandoned  one  of  the  errors  assigned,  that 
the  assignment  of  James  Cooper  previous  to  his  discharge 
by  the  insolvent  act,  did  not  include  all  the  property  he  had 
at  the  time.  The  assignment  is  as  comprehensive  as  words 
can  make  it. 

I  can  see  no  reason  for  the  exception,  that  Henderson 
should  shew  on  the  face  of  the  record,  in  what  capacity  or 
character  he  brought  his  suit.  I  see  no  necessity  for  it,  nor 
know  any  such  practice.  Where  lands  have  been  conveyed 
to  trustees  for  special  purposes,  the  trustees  may  support 
ejectment  in  their  own  names,  as  having  the  legal  estate. 
The  light  in  which  they  claim,  appears  when  the  trust  deed 
is  shewn  in  evidence,  and  no  ill  consequences  can  possibly 
arise  from  its  not  appearing  at  an  earlier  stage  of  the  cause. 

I  fully  agree  that  the  Courts  of  Common  Pleas  under  the 
old  act  of  14th  February  1729 — 30,  "  for  the  relief  of  in- 


192  CASES  IN  THE  SUPREME  COURT 

1813i  "solvent  debtors,"  (1  Smithes  Laws  181.)  possess  an  ifl- 
COOPER  herent  power  to  appoint  new  assignees  of  the  property  of 
et  al.  an  insolvent  debtor  in  certain  cases.  The  act  is  silent  in  that 
particular,  but  its  object  could  be  effectuated  in  no  other 
mo(je^  where  the  former  assignees  have  died  or  refused  to 
act.  Chancery  will  never  suffer  a  trust  to  be  disappointed 
for  want  of  a  trustee.  Where  trustees  decline  the  trust, 
equity  will  oblige  them  to  assign  to  others  appointed  by  the 
lord  chancellor.  But  here,  under  the  express  terms  of  the 
second  section  of  the  act,  "  the  estate,  interest  and  property' 
"  of  the  lands,  goods,  debts  and  effects  so  assigned,  shall  be 
**  vested  in  the  person  or  persons  to  whom  such  assignment 
"  shall  be  made,  who  may  take  possession  of  and  sue  for  the 
"  same  in  his  and  their  own  name  or  names,  in  like  manner 
"  as  assignees  or  commissioners  of  bankrupt  &c."  How  then 
has  this  interest  been  divested  from  the  assignees  first  ap- 
pointed by  the  Court  of  Common  Pleas  of  York  county  ?  By 
the  express  terms  of  a  positive  law,  all  the  interest  of  the 
insolvent  became  vested  in  them.  They  were  in  full  life, 
and  the  Court  of  Common  Pleas  in  York  county  had  in  my 
idea,  an  unquestionable  right  to  call  them  before  the  Court, 
and  oblige  them  to  reassign  their  interest  in  the  property  of 
the  insolvent,  in  case  they  refused  to  except  and  act  under 
the  trust.  How  can  the  substituted  assignees  or  the  survi- 
vor of  them,  shew  this  interest  to  be  in  themselves  without 
such  reassignment  ?  I  cannot  conceive  it  to  be  possible. 
Efforts  at  least  should  have  been  made  to  procure  the  re- 
assignment. As  matters  then  stood,  it  was  competent  to  the 
defendants  below,  who  rested  on  their  possession,  to  shew  an 
outstanding  title  adverse  to  the  plaintiff  in  ejectment.  In 
this  point  of  view,  I  think  the  opinion  of  the  Court  below 
was  erroneous.  Unless  the  substituted  surviving  assignee, 
could  deduce  his  interest  under  his  predecessors  or  the 
survivors  of  them,  I  think  he  was  not  entitled  to  recover ; 
and  I  am  of  ^opinion  that  the  judgment  of  the  Court  below 
be  reversed,  and  a  venire  facias  de  novo  be  awarded. 

BRACKENRIDGE  J.  concurred. 

Judgment  reversed. 


\ 

OF  PENNSYLVANIA.  193 

1813. 


DUNCAN  and  wife  against  FORRER. 

Saturday, 

'HIS  was  an  appeal  from  the  decision  of  Brackenridge 


J.  at  a  Circuit  Court  for  Cumberland  in  April  1809.   Pennsylvania 

does  not  sever  a 
joint-tenancy  ,not- 

Arnold  Duncan,  and  his  wife,  who  was  one  of  the  daugh-  J^g*n*  ^ 
ters  and  legatees  of  Robert  Patterson  deceased,  brought  this  makes  a  will  good 
action  of  account  render  against  Forrer  as  the  surviving  *"w  fo.athe  grant- 
executor  of  Patterson.  The  issue  on  which  the  cause  went»"S'  conveying 

.    .,.„  .  ,     ,  i-       i     •        and  assuring  of 

to  trial  was  never  bailiff  or  receivers;  and  the  verdict  being  lands  &c. 
for  the  plaintiffs,  judgment  quod  compulet  was  entered  in  the  sider  joint 

Circuit  Court.     By  the  report  of  his  honour,  the  case  was  as  tenants  in  com- 

mon, when  they 
thus  :  purchase  lands 

Christian  Garter,  by  articles  of  agreement  dated  the  29th  ^ViSesSn?" 

of  Mail  1792,  covenanted  to  convey  to  Patterson  and  Forrer  of  money  in  the 

_  ,       ,  .    .  improvement  of 

their  heirs  and  assigns,  a  piece  or  land  containing  50  acres  them. 

by  metes  and  bounds,  in  consideration  of  60G/.  payable  by 
instalments,  and  of  the  making  for  him  two  tons  of  bar  iron 
in  two  and  three  years  from  the  date.  Upon  the  12th  June 
following,  Garber  conveyed  by  deed  the  land  to  Patterson. 
and  Forrer  their  heirs  and  assigns,  "  to  have  and  to  hold 
"  the  same  to  them  their  heirs  and  assigns,  to  and  for  their 
"  proper  use  for  ever."  On  the  26th  September  1792,  Patter- 
son made  his  will,  whereby  he  directed  that  the  whole  of 
his  estate  real  and  personal  should  be  sold,  and  devised  one 
third  to  his  widow,  and  the  remainder  to  his  nine  children. 
He  appointed  his  widow  and  Forrer,  who  had  intermarried 
with  one  of  his  daughters,  executors;  and  on  the  9th  of 
October  1792,  letters  testamentary  issued  to  both  executors. 
On  the  14th  of  April  1798,  the  widow  having  died,  Forrer 
and  his  wife  executed  a  conveyance  to  John  Douglass  and 
others  of  the  premises,  in  consideration  of  2850/.  It  recited 
the  title  of  the  patentee,  and  the  mesne  conveyances  down 
to  Patterson  and  Forrer,  and  that  Patterson  died  seized  of 
one  moiety  of  the  lands,  having  first  made  his  last  will, 
thereby  appointing  his  executors,  with  power  to  them  or 
the  survivor  of  them  to  sell  ;  and  the  grantors  then  conveyed 
the  lands  with  warranty,  without  further  mention  of  the 
authority  in  the  will.  The  suit  was  brought  to  oblige  the  de- 
fendant to  account  for  a  moiety  of  the  proceeds  of  this  sale. 
VOL.  VI.  2  B 


194, 


CASES  IN  THE  SUPREME  COURT 


181 S.  It  appeared  on  the  trial,  that  Patterson  had  paid  a  larger 

DUNCAN      portion  of  the  consideration  money  than  Forrer,  but  the 
v.  precise   difference  was  not  ascertained.     The  widow  paid 

FORRER.  100/.  out  of  the  funds  of  the  testator,  and  Forrer  paid  180/. 
after  Patterson's  death.  He  also  made  many  valuable  im- 
provements on  the  premises,  estimated  at  above  150O/. 
One  of  the  witnesses  testified,  that  he  understood  the  pur- 
chase was  niade,  for  erecting  a  forge  for  the  manufacture  of 
iron  by  Patterson  and  Forrer;  but  nothing  was  done  by 
them  in  further  prosecution  of  that  object. 

It  was  admitted  at  the  trial  that  a  joint-tenancy  was  created 
by  the  words  of  the  deed  from  Garbcr ;  but  the  judge  de- 
livered his  opinion  to  the  jury,  that  under  all  the  circum- 
stances of  the  case,  the  plaintiffs  were  entitled  to  a  verdict, 
and  he  also  gave  his  opinion,  that  the  will  of  Robert  Patter- 
son was  a  severance  of  the  joint-tenancy,  and  defeated  the 
jus  accrescendi. 

Duncan  for  the  appellees,  contended  for  the  same  doctrine 
in  this  Court.  He  argued  :  1.  That  though  a  legal  joint- 
tenancy,  it  was  an  equitable  tenancy  in  common,  in  conse- 
quence of  the  object  for  which  the  land  was  purchased,  viz. 
for  the  manufacture  of  iron,  and  in  consequence  of  the 
unequal  contribution  of  the  parties  toward  the  purchase  ; 
for  which  purpose  he  cited  Lake  v.  Craddock(a),  Rig-den  v. 
Vallier  (£),  Caines  v.  Lessee  of  Grant  (c),  Sugden  407., 
and  Addison's  Rep.  330.  2.  That  in  Pennsylvania,  a  last 
will  was  a  severance,  by  virtue  of  the  Laws  agreed  upon  in 
England,  No.  15.,  1  State  Laws  App.  22.,  by  which  it  was 
provided,  that  wills  attested  by  two  witnesses,  should  be  of 
the  same  force  as  to  lands,  as  other  conveyances  ;  and  also 
by  the  first  section  of  the  act  of  1 705,  1  State  Laws  53.,  by 
which  last  wills  were  made  good  and  available  for  convey- 
ing, granting,  and  assuring  lands. 

He  also  argued,  that  the  recital  by  Forrer  in  his  deed  to 
Douglass,  amounted  to  a  declaration,  that  he  held  as  to  one 
half  in  trust  to  execute  the  will  of  Patterson;  which  was 
equivalent  to  a  covenant  by  him  so  to  hold  it.  1  Powel  on 
Con.  237.,  Griffith  v.  Penrose  (d). 


(a)  3  P.  Jfms.158, 
(i)  SAtk.  7,54. 


(c)  5  Sinn.  150. 
231. 


OF  PENNSYLVANIA. 

Carothers  and  Watts  contra,  answered,  that  as  the  judge 
had  told  the  jury  that  the  will  was  a  severance,  there  must" 
be  a  new  trial.  For  that  doctrine  there  was  no  warrant, 
unless  by  a  last  will  a  man  could  make  a  fee  simple  out  of 
an  estate  tail,  or  could  give  away  that,  which  ceased  to  be 
his  before  his  will  took  effect.  That  in  point  of  equity,  there 
were  no  circumstances  to  alter  the  law  of  the  case,  this  not 
being  a  purchase  for  a  partnership,  or  to  expend  money  upon 
in  improvements  ;  and  that  as  to  the  recitals  in  Forrer's 
deed,  they  were  made  to  satisfy  a  purchaser,  and  at  all 
events  could  not  be  taken  advantage  of  by  strangers  to  that 
conveyance.  They  cited  2  Cruise  504.  525.,  Co.  Litt.  185, 
sec.  286.,  Co.  Litt.  352  a.  b. 

TILGHMAN  C.  J.  The  counsel  for  the  plaintiffs  admit  the 
general  maxim,  that  the  right  of  survivorship  is  preferred 
to  the  last  will  by  the  common  law  ;  but  they  contend,  1st. 
that  the  law  of  Pennsylvania  differs  in  this  respect  from 
the  common  lawj  and  2dly,  even  supposing  that  it  were 
not  so,  yet  under  the  circumstances  of  this  case,  a  court  of 
chancery  would  consider  Patterson  and  Forrer  as  tenants 
in  common,  and  therefore  the  verdict  being  right,  there 
ought  not  to  be  a  new  trial,  even  though  the  judge  might 
have  stept  a  little  too  far  in  stating  the  effect  of  the  will  as 
to  the  severance  of  the  jointure. 

1.  At  the  time  of  Patterson's  death,  we  had  no  act  of 
assembly  expressly  affecting  an  estate  in  joint-tenancy, 
although  one  has  been  made  since,  which  has  no  operation 
on  the  present  case.  But  reliance  is  placed  on  the  act  "  con- 
"  cerning  the  probate  of  wills"  &c.,  passed  in  1705,  by  which 
it  is  enacted,  that  a  will  proved  as  therein  directed,  "  shall 
"  be  good  and  available  in  law,  for  the  granting,  conveying, 
"  and  assuring  of  the  lands  or  hereditaments,  thereby  given 
"or  devised,  as  well  as  of  the  goods  and  chattels,  thereby 
"  bequeathed."  The  argument  is,  that  the  will  operates  as 
a  grant  or  conveyance,  and  therefore  severs  the  jointure. 
But  I  see  nothing  in  the  act  to  warrant  this  inference.  The 
object  of  the  law  was,  to  enable  all  persons  to  dispose  of 
their  devisable  lands  by  last  will,  but  not  to  alter  the  nature 
of  their  estates.  It  was  never  supposed  that  a  tenant  in  tail, 
might  dispose  of  his  lands  by  devise,  so  as  to  bar  his  issue. 
When  a  will  takes  effect,  it  operates  as  a  species  of  convey- 


195 


1813. 


DUNCAN 

v 
FORRER. 


196 


CASES  IN  THE  SUPREME  COURT 


1813. 


DUNCAN 
v. 

FORRER. 


ance ;  but  a  conveyance  which  does  not  take  effect  till  after 
the  death  of  the  testator.  But  the  rule  of  law  being  fixed, 
that  at  the  instant  of  death  the  right  of  survivorship 
attaches,  in  preference  to  the  will,  the  act  of  assembly  does 
not  embrace  the  case.  This  appears  to  be  the  plain  construc- 
tion of  the  act,  and  I  have  never  before  heard  of  any  other. 
The  plaintiffs'  counsel  has  not  produced  the  decisions  of 
any  court  in  support  of  his  arguments. 

2.  Whether  the  verdict  is  right,  is  not  altogether  clear. 
There  certainly  are  cases  in  which  equity  will  consider 
joint-tenants  as  tenants  in  common ;  and  one  of  those  cases 
is,  where  a  purchase  of  land  is  made  by  two  persons,  with 
a  view  to  expending  large  sums  of  money  in  the  improve- 
ment of  it.  It  is  said  that  this  purchase  was  made  with  a 
view  to  the  erection  of  iron  works.  Perhaps  it  was.  One  of 
the  witnesses  said  that  he  understood  so  ;  but  he  did  not  say 
when  or  from  whom  he  got  his  information.  A  stronger  cir- 
cumstance appears  in  the  articles  of  agreement  for  the  pur- 
chase, previous  to  the  conveyance.  Part  of  the  consideration 
was  two  tons  of  iron,  to  be  made  in  the  years  1794  and  5, 
(two  years  and  more  after  the  date  of  the  articles).  In  con- 
firmation of  an  intent  to  hold  as  tenants  in  common,  the 
plaintiffs  rely  also  on  the  deed  from  Forrer  and  wife,  con- 
veying the  land  to  Douglass  and  others,  in  which  it  is  recited, 
that  Patterson  "  died  seized  in  part  of  the  said  undivided 
"  53  acres  of  land,  having  made  his  last  will  and  testament, 
"by  which  he  authorized  his  executors  to  sell  his  lands,  for 
"  the  purposes  mentioned  in  the  said  will."  On  the  other 
hand  it  is  said,  that  no  iron  works  were  erected,  and  that 
after  the  death  of  Patterson  the  defendant  expended  up- 
wards of  40OO  dollars  in  improvements  on  his  private 
account.  With  regard  to  the  recital  in  the  defendants  deed 
to  Douglass,  he  says  that  it  was  done  to  satisfy  the  purchaser, 
and  not  from  any  doubt  of  his  own  title.  In  this  mixt  kind 
of  case,  consisting  of  law  and  fact,  it  would  have  been  pro- 
per for  the  Court  to  inform  the  jury,  that  the  will  of  itself 
could  have  no  effect  in  severing  the  joint-tenancy,  and  then 
the  material  circumstances  might  have  been  laid  before  them, 
and  the  law  explained,  as  applied  to  those  circumstances. 
But  it  may  be  that  the  jury,  understanding  that  the  right  of 
survivorship  was  defeated  by  the  will,  might  not  think 
themselves  at  liberty  to  enquire  farther  into  the  case.  In 


OF  PENNSYLVANIA. 


197 


order  to  afford  an  opportunity  for  such  enquiry,    I  am  of       1813. 
opinion  that  there  should  be  a  new  trial. 


YEATES  J.  after  stating  the  case  very  fully,  delivered  his 
opinion  to  the  same  effect. 

The  plaintiffs'  counsel  have  insisted  that  a  co-tenant  may 
devise  his  interest  in  lands  held  in  joint-tenancy  by  the  laws 
of  Pennsylvania.  To  prove  this,  it  has  been  urged,  that  wills 
as  to  lands  shall  have  the  same  force  and  effect  as  legal  con- 
veyances. 1.  Dall.  Laws,  App.  22.  No.  15.  Written  wills 
proved  by  two  witnesses,  shall  be  available  in  law  to  convey 
and  assure  the  lands  devised  in  Pennsylvania  under  the  old 
act  of  1705,  Sec.  1.  1  Dall.  Laws  53.  But  these  provisions 
evidently  presuppose  an  estate  in  the  lands  devised,  capable 
of  being  passed  by  will.  It  will  not  be  said,  that  because  un- 
der the  act  of  16th  January  1799,  (3  Smith's  Laws,  338), 
tenant  in  tail  may  bar  the  estate  tail  by  deed  acknowledged 
and  recorded  as  the  act  specially  points  out,  he  may  effect 
the  same  thing  by  his  last  will.  Nor,  if  the  real  state  of  the 
law  was  in  unison  with  the  plaintiffs'  doctrine,  could  there  be 
any  necessity  to  enact  the  law  "  concerning  joint-tenancy," 
on  the  SlstMarch  1 812,  (5  Smith's  Z.aws,395),  whereby  joint- 
tenancies  in  all  cases,  except  trusts,  are  transmuted  into 
tenancies  in  common.  The  distinguishing  feature  of  joint- 
tenancy  is,  that  it  disqualifies  the  party  from  devising  his 
interest.  3  Burr.  1496.  He  holds  under  the  original  grant 
merely  ;  and  unless  the  joint-tenancy  is  severed  during  his 
life,  the  jus  accrescendi  arises  as  an  inevitable  consequence 
from  the  nature  of  the  estate.  This  affords  a  sufficient  an- 
swer to  the  argument  deduced  from  Patterson's  last  will. 
Forrer  in  a  legal  view  was  no  further  responsible  for  assets, 
than  as  to  the  legal  right  of  Patterson  in  the  premises,  and 
was  put  to  no  election  by  a  devise  to  his  wife  of  the  one 
undivided  ninth  part  of  the  residue.  The  recitals  in  his  deed 
corresponded  with  the  truth  of  the  case  in  every  particular ; 
but  it  by  no  means  appears  that  he  sold  under  the  autho- 
rity in  the  will  given  to  the  executors  or  the  survivor.  Upon 
this  head,  the  deed  is  at  least  equivocal. 

The  unequal  sums  paid  by  Patterson  and  his  widow  and 
Forrer,  cannot  afford  any  just  ground  of  exception  from  the 
general  rule  of  law.  If  Forrer  has  paid  a  less  sum  than  he 
was  liable  to  pay  under  the  terms  of  his  original  contract, 


DUNCAN 

v. 
FORRER. 


198 


CASES  IN  THE  SUPREME  COURT 


1813. 


DUNCAN 

v. 
FOHUER. 


he  must  necessarily  be  responsible  to  the  estate  of  his  father- 
"in-law  in  some  other  mode  of  procedure.  Upon  this  part 
of  the  subject  it  is  of  moment  to  state,  that  he  has  expended 
more  than  1500/.  in  valuable  improvements  on  lands  of 
which  the  plaintiffs  mean  to  establish  that  one  moiety  be- 
longed to  Patterson,  and  was  subject  to  the  directions  of  his 
last  will. 

This  is  not  a  mercantile  case.  It  is  not  established  clearly 
that  the  premises  were  bought  as  a  forge  seat.  Certainly  no 
partnership  appears  by  the  evidence  to  have  been  entered 
into  for  that  purpose  j  nor  were  any  erections  made,  or  even 
meditated,  for  the  accomplishment  of  that  object. 

Upon  the  whole,  I  freely  admit  that  the  case  bears  hard 
on  the  children  of  Patterson.  This  in  the  nature  of  things 
is  the  case  in  all  instances  of  estates  in  joint-tenancy,  where 
the  chance  of  survivorship  is  not  perfectly  equal,  and  where 
the  prospect  of  families  in  life  rests  on  the  event.  Joint- 
tenancies  are  seldom  or  never  intended  by  the  purchasers  of 
lands.  The  law  acts  by  general  rules.  Where  such  words 
are  made  use  of  in  a  deed,  as  the  law  will  construe  to  be  a 
joint-tenancy,  legal  consequences  must  necessarily  flow  there- 
from, and  we  are  bound  to  follow  the  results.  If  the  joint- 
tenancy  was  not  severed  in  the  life  time  of  Patterson,  his 
will  could  not  operate  upon  it,  nor  defeat  the  jus  accrescendi. 

I  am  of  opinion  that  the  judgment  of  the  Circuit  Court 
be  reversed,  and  a  new  trial  be  awarded. 

Judgment  reversed. 


M'DOWELL  against  BURD. 

Chambersburgt  IN  ERROR. 

Saturday, 

October  9. 

in  an  action  to  npHIS  was  an  action  of  debt  in  the  Common  Pleas  of 
rfrnegmfthf6  *  Franklin,  brought  by  McDowell  upon  a  single  bill  given 
defendant  is  enti-by  ^ur(j  for  20O  dollars,  dated  the  23d  of  Februani  1808, 
tied  to  give  evi-  /  *-,...  T.I 

dence,that&e/br^,and  payable  in  three  months  after  date,  with  interest.     1  he 

thereof  the    defendant  pleaded  payment,  with  leave  to  give  the  special 

sale,  the  negro       matter  Jn  evidence. 

was  afflicted  with 

a  disorder  which 

made  him  of  little  value ;  and  he  is  not  obliged  to  shew  previously  that  the  plaintiff  knew  it.    That 

may  be  done  subsequently. 


OF  PENNSYLVANIA.  199 

At  the  trial  of  the  cause,  it  was  proved,  that  the  conside-         1813. 
ration  of  the  bill  was  a  negro  boy  sold  by  the  plaintiff  to  the 


defendant  for  a  term  of  years.    The  defendant  then  offered  -v. 

to  prove,  that  before,  at  and  after  the  time  of  sale,  the  negro       BURD. 
was  afflicted  with  a  disorder  which  made  him  of  little  value. 
The  plaintiff  objected,  but  the  Court  admitted  the  evidence, 
and  sealed  a  bill  of  exceptions. 

Brown  and  Riddle  for  the  plaintiff  in  error,  contended 
that  the  evidence  was  admissible,  1.  Because  the  defendant 
had  not  previously  shewn  that  the  plaintiff  knew  of  the  un- 
soundness  ;  for  as  there  was  no  warranty,  knowledge  of  the 
unsoundness  was  essential  to  make  him  responsible.  Seixas 
v.  Woods  (a),  Frost  v.  Raymond  (£),  Snell  v.  Moses  (c), 
Perry  v.  Aaron  (</),  Defreeze  v.  Trumper  (e),  1  Roll.  Abr. 
9O.  pi.  4.  J.,  1  Fonbl.  109,  110.,  2  Peak.  Ev.  228.,  2  Roll. 
Rep.  5.,  Chandelor  v.  Lopes  (f  ).  2.  Because  the  only  ques- 
tion could  be  as  to  unsoundness  at  the  time  of  sale  ',  unsound- 
ness  before  and  after  had  nothing  to  do  with  either  fraud  or 
the  contract.  3  Bl.  Comm.  165. 

Duncan  contra.  It  was  necessary  first  to  prove  the  un- 
souhduess,  and  then,  if  there  was  no  warranty,  the  plaintiff's 
knowledge.  At  most,  the  order  of  the  evidence  was  imma- 
terial. It  is  however  not  clear  that  proof  of  knowledge  was 
essential.  It  has  been  settled  in  England  that  a  sound  price 
does  not  imply  a  warranty,  though  the  law  there  was  once 
otherwise  ;  but  it  has  never  been  so  settled  in  this  state.  In 
Timrod  v.  Shoolbred  (g),  it  was  held  that  a  sound  price 
for  a  negro,  warrants  against  all  defects  known  or  unknown. 
As  to  the  evidence  of  unsoundness  before  and  after  the  sale, 
it  was  proper  for  two  reasons  :  first  that  the  jury  might  infer 
from  the  duration  and  circumstances  of  the  disease,  the 
plaintiff's  knowledge  of  it  ;  and  secondly  that  they  might  be 
informed  of  the  degree  of  unsoundness,  and  that  it  was  not 
an  occasional  infirmity. 

TILGHMAN  C.  J.  The  plaintiff  contends  in  the  first  place, 
that  the  evidence  was  improper,  because  the  defendant  did 

(a)  2  Caines  48.  (J)  1  Johns.  1S9.  (/)  Cro.  Jac.  4. 

(6)  2  Caines  191.  (r)  1  Johns.  274.  O)  i  Bay  ?24. 

(c)  1  Johns.  96. 


gOO  CASES  IN  THE  SUPREME  COURt 

1813.        not  set  forth  that  he  should  also  give   evidence   that  the 
M'DowELL  plaintiff  knew  of  the  disorder  ;  and  next  he  says,  that  at  all 
v.  events  no  evidence  should  have  been  received  of  the  state 

BURD.       of  health  subsequent  to  the  sale. 

1.  The  plaintiff's  counsel  do  not  deny,  that  he  would  be 
responsible    if  he  sold  the  negro  even  without  warranty, 
knowing  that  he  was  affected  with  a  disease  which  greatly 
injured  him,  and  concealing  that  circumstance  from  the  pur- 
chaser.   It  seem  to  follow  as  a  necessary  consequence,  that 
the  evidence  was  proper;  for  in  the  natural  order  of  things, 
the    disorder  was    first  to  be  proved,  and  afterwards  the 
plaintiff's  knowledge  of  it.    The  question  before  the  Court 
is   whether  the   evidence  was    proper   at  the  time  it  was 
offered,  and  not  what  was  the  consequence  of  it  after  it  was 
given.    If  the  defendant  did  not  bring  home  to  the  plaintiff 
the  knowledge  of  the  disorder,  the   opinion   of  the  Court 
might  have  been  asked  on  the  whole.     But  for  any  thing 
that  appears  on  the  bill  of  exceptions,  the  defendant  may 
have  proved  the  knowledge  of  the  plaintiff  in  a  subsequent 
stage  of  the  cause,  or  the  Court  may  have  charged  the  jury 
on  the  whole  evidence,  agreeably  to  the  plaintiff's  own  con- 
ceptions of  the  law.    Be  that  as  it  may,  the  evidence  of  the 
negro  being  diseased  was  properly  received. 

2.  The  state  of  health  at  the  time  of  sale,  is  the  only  ques- 
tion between  the  parties.      If  the  negro  was  in  good  health 
then,  it  is  immaterial  what  was  his  condition  before  or  after. 
But  it  is  very  clear,  that  in  order  to  ascertain  the  state  of 
health  at  the  time  of  sale,  it  was   necessary  to  enquire  into 
his  situation  before  and  after.    The  disorder  is  said  to  have 
been  of  a  lethargic  nature  of  long  standing.    Now  how  could 
the  jury  have  judged  of  this,  if  they  had  only  been  per- 
mitted to  receive  evidence  of  the  man's  condition  at  the 
time  of  contract.  He  might  have  been  affected  with  a  stupor 
at  that  moment,  but  recovered  the  next  day,  and  continued 
perfectly  well  ever  after ;  or  he  might  have  been  lively  at 
the  moment  of  sale,  and  generally  affected  with  a  lethargy 
for  a  long  time  before  and  after,  so  that  upon  the  whole  it 
might  have  been  truly  said  that  he  was  diseased  at  the  time 
of  sale.  I  am  therefore  of  opinion,  that  the  whole  evidence 
was  proper  and  the  judgment  should  be  affirmed. 


OF  PENNSYLVANIA.  201 

YEATES  J.  I  am  fully  satisfied  that  it  was  competent  to        1813. 


the  defendant  under  the  plea  of  payment,  with  leave  to  give    j 
the  special  matter  in  evidence,  to  go  into  the  consideration  v. 

for  which  this  single  bill  was  given.  He  might  give  in  evi-  BURD. 
dence,  that  the  negro  boy,  whose  price  formed  the  considera- 
tion of  the  bill,  was  unsound  at  and  immediately  before  the 
execution  of  the  bill  of  sale,  and  so  continued  until  the  time 
of  trial.  His  state  of  health  when  the  contract  was  made, 
formed  the  great  object  of  enquiry,  and  whether  any  fraud 
actual  or  legal  was  committed  by  the  vendor  at  the  time  of 
sale.  A  malady  or  disorder  in  the  human  body  can  only  be 
ascertained  by  its  appearances  at  different  times,  and  its  pro- 
gress is  strongly  marked  thereby. 

It  is  not  pretended  that  the  sale  was  accompanied  either 
by  an  express  warranty,  or  false  representation,  of  the  health 
of  the  boy,  nor  that  the  Court  below  expressed  any  opinion 
against  the  defendant  on  those  grounds.  It  only  appears  on 
the  bill  of  exceptions,  that  the  Court  overruled  the  objec- 
tions made  to  the  admission  of  the  evidence.  If  they  had 
gone  further,  and  charged  the  jury  that  a  sound  price  implied 
a  warranty,  the  whole  case  would  be  open  to  our  revision, 
and  I  should  think  in  such  a  case  the  Court  had  stated  the 
law  erroneously.  Whatever  opinion  the  Court  expressed 
upon  the  occasion,  might,  if  the  plaintiff  thought  proper,  be 
placed  upon  the  record ;  but  not  having  done  so,  we  must 
take  the  record  as  we  find  it.  The  state  of  the  negro's  health, 
would  naturally  precede  the  bringing  home  his  unsoundness 
to  the  knowledge  of  the  defendant,  and  thereby  affecting 
him  at  least  with  a  legal  fraud.  As  matters  now  stand 
before  the  Court,  I  see  no  error  in  the  admission  of  the 
evidence,  and  therefore  am  of  opinion,  that  the  judgment  of 
the  Court  of  Common  Pleas  should  be  affirmed. 

BRACKENRIDGE  J.  concurred. 

Judgment  affirmed. 

END    OF  SEPTEMBER  TERM,  1813,  SOUTHERN    DISTRICT. 


VOL.  VI.  2  C 


CA  S  E  S 


THE 


SUPREME   COURT 

or 

PENNSYLVANIA. 


Eastern  District,  December  Term,  1813. 
The  Commonwealth  against  EDWARDS. 


•f  of  o  6b  202 

1H1J*  6sr528 


Thursday, 
December  16. 

The  master  of  A  HABEAS  CORPUS  issued  to  the  defendant,  to  bring 
caVnmTJkiThim  "^"^  UP  tne  body  of  Maria  Slack,  an  infant,  in  his  custody, 
out  of  the  state  to  which  he  made  return,  that  he  held  her  as  an  apprentice 

where  the  mden-  r    •    i 

tureswereexecu-to  serve  until  the  age  of  eighteen,  by  virtue  of  an  indenture 
indentures*  &ve  duly  executed  by  an  overseer  of  the  poor  in  the  borough  of 
the  power,  or  it  Norfolk,  Virginia. 

follows  from  the  * 

nature  of  the 

tEp^toe  >»  Upon  the  hearing,  it  appeared  that  the  indenture  was 
to  learn.  dated  the  23d  of  May  1811,  and  was  executed  by  Francis 

Butt,  one  of  the  overseers  of  the  poor  for  the  borough  of 
Norfolk,  and  by  Henry  Edwards  for  himself  and  his  wife ; 
and  it  recited  that  Butt,  in  pursuance  of  an  order  of  Court 
of  the  preceding  month,  bound  the  minor,  an  orphan  child, 
to  Edwards  and  wife,  to  learn  the  art  of  a  milliner,  until 
she  should  arrive  at  the  age  of  eighteen,  the  master  and 
mistress  to  find  her  in  meat,  washing,  lodging,  clothes  &c., 
to  have  her  taught  reading  and  writing,  and  to  give  her 
twelve  dollars  at  the  expiration  of  her  apprenticeship. 

S.  Etvlng  for  the  minor.  The  indenture  made  in  Vir- 
ginia, has  no  force  in  Pennsylvania.  It  is  local  as  to  its 
objects,  it  proceeds  from  a  law  purely  municipal,  and  has 
no  efficacy  except  within  its  own  jurisdiction.  It  is  more- 
over violated  and  annulled  by  the  act  of  the  master,  in 
bringing  the  minor  out  of  the  state  where  she  was  bound  ;  a 


CASES  IN  THE  SUPREME  COURT  &c.  S03 

power  which  a  master  has  not  generally  at  common  law,        1813. 
and  which,  for  the  best  reason,  he  should  not  be  permitted     COMMON- 
to  have,  except  where  the  nature  of  the  art  to  be  taught,      WEALTH 
particularly  requires  it.     In  this  case,  no  law  of  Virginia  is  T>> 

shewn  to  authorize  the  removal;  and  by  bringing  her  away,  DWAKDS 
the  peculiar  protection  of  Virginia  laws  and  courts  in  cases 
of  apprentices  is  lost,  and  no  such  protection  is  gained  here. 
The  law  in  authorizing  overseers  of  the  poor  to  bind  out 
minors,  intends  that  they  shall  be  kept  where  the  same  law 
can  do  them  justice.  If  the  overseer  of  Norfolk  meant  to 
give  the  power  of  removal,  his  authority  must  be  shewn, 
otherwise  the  master  must  be  subject  to  the  general  princi- 
ple. Coventry  v.  Woodhaugh  (a),  4  Bac.  Abr.  578,  Master 
&  Servant  E.)  Hall  v.  Gardner  (£),  Davis  v.  Coburn  (c). 

Badger  for  the  defendant.  The  trust  of  an  apprentice,  is 
I  agree,  a  personal  trust ;  this  prevents  an  assignment  of 
the  indentures.  But  the  master  continuing  to  be  the  same 
person,  I  deny  that  there  is  any  decision  against  his  autho- 
rity to  take  the  apprentice  out  of  the  realm  with  him.  In 
many  cases  it  is  necessary,  particularly  in  the  case  of  sea- 
men, which  cannot  be  deemed  an  exception.  If  the  law 
imperatively  prohibits  a  master  from  taking  his  apprentice 
beyond  sea,  it  must  prohibit  such  an  indenture  as  gives  him 
the  authority.  It  seems  therefore  that  either  minors  cannot  be 
bound  apprentices  to  the  sea,  which  we  know  is  not  the  case, 
or  that  the  master  has  the  authority  we  contend  for  in  all 
cases.  But  another  objection  to  this  Court's  interference  is, 
that  the  indentures  were  made  by  authority  of  a  Court  of 
competent  jurisdiction,  which  ought  to  be  respected  every 
where.  The  master  is  here  compellable  to  provide  for  the 
infant ;  he  should  therefore  have  the  custody  of  her  person. 
Commonwealth  v.  Hamilton  (</). 

TILGHMAN  C.  J.  Maria  Slack,  an  infant,  now  in  her 
16th  year,  was  bound  apprentice  from  the  age  of  13  to  18, 
to  Henry  Edwards  and  his  wife,  to  learn  the  art  of  a  mil- 
liner, by  an  overseer  of  the  poor  for  the  borough  of  Norfolk^ 
in  the  state  of  Virginia,  in  pursuance  of  an  order  of  Court. 
She  is  an  orphan,  and  it  is  presumed  that  the  binding  was 


a)  1  Bolts  P.  L.  508.  pi.  710.  (c)  8  Jlf<wt.304. 

6)  1  Matt.  180.  (d)  6  Matt.  Rep.  575 


204 


1813. 


COMMON- 
WEALTH 

v. 
EDWARDS. 


CASES  IN  THE  SUPREME  COURT 

according  to  the  law  of  Virginia.  Edwards  and  wife  re- 
•  moved  from  Virginia  to  this  city,  and  brought  the  girl  with 
them,  and  now  detain  her  by  virtue  of  the  indenture  of  ap- 
prenticeship. Although  there  is  no  express  stipulation  that 
the  apprentice  shall  not  be  removed  from  Virginia,  yet  it  is 
to  be  so  understood  from  the  nature  of  the  case.  It  must 
be  supposed,  that  when  the  legislature  of  any  state  vests  in 
its  courts  a  power  over  the  persons  of  orphans,  that  power 
is  to  be  so  exercised,  that  the  orphans  shall  not  be  with- 
drawn to  places  beyond  the  jurisdiction  of  the  state,  except 
those  who  are  bound  to  the  sea  service,  which  must  neces- 
sarily call  them  abroad.  While  within  that  jurisdiction,  they 
are  sure  of  protection  from  the  same  laws  which  authorized 
their  binding.  But  the  moment  they  enter  a  country  where 
other  laws  prevail,  they  may  receive  treatment  very  differ- 
ent from  what  was  contemplated  by  the  Court  under  whose 
authority  they  were  bound.  If  it  be  permitted  to  remove 
this  apprentice  beyond  the  limits  of  Virginia,  she  may  be 
carried  to  the  West  or  East  Indies.  There  is  no  medium. 
The  service  must  either  be  restricted  to  Virginia,  or  not 
restricted  at  all.  The  consequence  of  a  boundless  license  of 
removal  would  be  monstrous.  Instead  of  affording  protec- 
tion to  orphans,  the  Court  which  was  entrusted  with  their 
superintendance,  might  only  be  exposing  them  to  hardship 
and  ruin.  I  am  therefore  of  opinion  that  Maria  Slack  can- 
not be  held  in  this  state,  by  virtue  of  the  indenture  executed 
in  Virginia.  It  will  be  understood  that  this  opinion  has  no 
bearing  on  the  case  of  negroes,  bound  to  service  in  other 
states,  until  the  age  of  twenty-eight  years,  and  brought  into 
this  state  before  the  term  of  service  expires.  Such  persons 
are  in  a  different  situation  from  common  apprentices,  and 
their  condition  depends  in  part  on  the  singular  nature  of 
their  case,  and  in  part  on  acts  of  assembly  of  our  own. 

YEATES  J.  I  take  it  for  granted,  that  the  indenture  of 
apprenticeship  executed  in  this  case  by  the  overseers  of  the 
poor  of  the  borough  of  Norfolk,  was  in  exact  conformity  to 
the  laws  of  Virginia.  The  only  question  to  be  decided  by 
the  Court  on  the  habeas  corpus  is,  whether  the  master  of  an 
apprentice  so  bound,  can  compel  her  to  serve  the  residue  of 
her  time  in  this  state  ? 


OF  PENNSYLVANIA. 


205 


The  cases  cited  on  behalf  of  Maria  Slack,  fully  prove  that 
an  apprentice,  who  has  been  bound  to  learn  any  trade  or 
occupation,  cannot  by  the  English  common  law  be  forced  out 
of  the  kingdom,  unless  such  removal  is  provided  for  in  the 
indenture,  or  the  nature  of  the  contract  requires  it,  as  in  the 
case  of  seafaring  men  &c.  Independently  of  these  autho- 
rities, we  must  presume  that  contracts  of  apprenticeship  are 
entered  into  with  reference  to  the  laws  of  the  government 
where  they  are  made,  which  secure  to  the  apprentice  pro- 
tection against  the  misconduct  of  the  master,  and  redress 
for  injuries  inflicted  by  him.  Although  the  indenture  is 
silent  upon  this  subject,  it  cannot  be  supposed  that  the  par- 
ties thereto  contemplated  a  removal  by  the  master  from 
Virginia  into  Pennsylvania,  and  the  principle  upon  which 
such  a  change  of  situation  could  be  defended,  would  justify 
his  removal  into  the  most  distant  country.  No  one  can  say, 
that  it  could  be  the  intention  of  the  present  parties,  that  this 
girl  should  be  thus  separated  from  her  friends  and  connec- 
tions. I  am  therefore  of  opinion,  that  Edwards  cannot  detain 
Maria  Slack  under  this  indenture,  and  that  she  should  be 
discharged  from  his  custody. 

BRACKENRIDGE  J.  Where  the  nature  of  the  mystery  to 
be  learned  leads  to  it,  that  of  seamanship  for  instance,  a 
carrying  out  of  the  state  for  a  time,  and  with  a  view  to  that 
object,  might  be  lawful,  if  such  binding  as  an  apprentice  and 
carrying  out  were  allowable  by  the  laws  of  that  state,  but  not 
otherwise.  A  person  of  full  age  binding  himself  tali  aspectu, 
might  be  carried  out,  and  a  parent  binding  tali  aspectu 
might  make  such  binding  effectual,  and  a  law  of  a  state  pro- 
viding that  a  guardian  should  have  power  to  bind  to  such 
apprenticeship,  might  make  such  binding  valid,  that  is,  an 
occasional  and  temporary  binding  out.  But  still  such  bind- 
ing or  contract  must  be  with  a  view  to  that  apprenticeship, 
otherwise  it  must  be  considered  a  fraud,  and  not  within  the 
contract  to  carry  out  of  the  state.  It  would  be  a  trespass  to 
carry  without  such  consent.  By  the  common  law,  no  one 
can  be  carried  out  of  the  realm  of  England  without  his  con- 
sent, whatever  obligation  there  might  have  been  upon  him, 
or  interest  in  another  to  have  him  taken  out.  The  case  of 
Somerset  v.  Stewart,  Loft's  Reports,  shews  this,  and  Har- 


1813. 


,OMMON- 

WEALTH 

V. 

EDWARDS. 


206 


CASES  IN  THE  SUPREME  COURT 


1813.        grave's  State  Trials,  last  volume*  Had  negro  Somerset  gone 

"7; on  board  a  merchant  vessel,  and  even  out  of  the  municipal 

COMMON-  r 

WEALTH      jurisdiction,  he  could  not  have  been  taken  out  or  the  noat- 

v.  ing  domicil,  but  would  have  been  protected  by  the  law  of 

EDWARDS,  nations,  at  least  by  the  arm  of  the  government  of  England; 
for  that  nation  never  did  suffer  a  search  for  the  purpose  of 
taking  men,  but  for  the  purpose  of  ascertaining  the  character 
of  the  vessel  only.  This  I  have  considered  more  at  length, 
in  a  publication  which  I  have  upon  the  stocks,  and  may 
appear  in  due  time.  An  apprentice  cannot  be  taken  out  of 
this  state,  not  even  with  his  consent  nor  that  of  his  guardian  ; 
for  the  guardian  cannot  be  supposed  to  have  the  power  of 
contracting  for  such  purpose,  the  law  of  the  state  not  ex- 
pressly giving  it,  and  perhaps  it  could  not  give  it,  so  as  to 
have  the  extra-territorial  effect  of  continuing  that  appren- 
ticeship beyond  the  jurisdiction.  On  every  ground  therefore 
I  am  of  opinion  that  the  apprentice  be  discharged. 

Apprentice  discharged. 


1814. 


Philadelphia, 
Saturday, 
January  1st. 


The  Commonwealth  ex  relat.  SUSAN  STEPHENS 
against  CLEMENTS. 

T^HIS  was  a  habeas  corpus  issued  to  Joseph  Clements, 
feme  covert  si«ve,    JL  to  bring  up  the  body  of  Susan  Stephens,  in  his  custody, 

in  consideration  of  ,  .  .      ,  ~ ,          .        .  „.        ,    r       . 

her  manumission,  together  with  the  cause  or  her  detainer.  1  he  defendant  made 
u  good.  return,  that  he  held  her  as  a  servant  by  indenture  dated  the 

3d  September  1813,  by  which  she  bound  herself  to  serve 
him  for  the  term  of  three  years.  The  writ  was  returnable 
before  the  Chief  Justice  ;  and  in  consequence  of  its  novelty, 
the  case  was  heard  before  the  whole  Court. 

It  appeared  in  evidence,  that  Susan  Stephens  was  a  black 
woman,  formerly  the  slave  of  William  Maxwell  of  Kent 
county  in  the  state  of  Maryland;  and  that  she  ran  away  from 
her  master,  and  came  to  Philadelphia,  where  she  married 
George  Stephens  a  free  black  residing  there.  Maxwell  after- 
wards came  to  the  city,  apprehended  the  woman,  had  her 
in  his  custody  as  his  slave,  and  was  about  to  carry  her  to 
Maryland,  when  Joseph  Clements,  at  the  solicitation  of  both 


OF  PENNSYLVANIA.  207 

the  husband  and  wife,  agreed  to  pay  Maxwell  195  dollars,        1814. 
provided  he  would  manumit  the  wife,  it  being  at  the  same     COMMON- 
time  understood,  that  the  husband  and  wife  should  bind      WEALTH 
themselves  as  servants  to  Clements  for  the  term  of  three  v* 

years.  In  pursuance  of  this  agreement,  Clements  paid  Max- 
well the  money,  Maxwell  executed  a  deed  of  manumission, 
and  Stephens  and  his  wife  bound  themselves  by  separate 
indentures  to  serve  Clements  for  three  years.  The  indenture 
of  the  wife  was  executed  before  an  alderman  of  the  city,  her 
husband  being  present,  and  consenting,  but  not  being  a  party. 
It  was  also  executed  by  William  Masters,  one  of  the  society 
for  promoting  the  abolition  of  slavery,  who  was  styled  the 
next  friend  of  the  wife.  The  indenture  was  expressed  to  be 
made  in  consideration  of  the  manumission  of  Susan  Ste- 
phens by  the  said  Maxwell,  and  of  195  dollars  paid  to  him 
by  the  said  Clements.  At  the  time  of  the  transaction,  Susan 
was  in  a  state  of  pregnancy. 

Shoemaker  for  the  relater.  The  indenture  of  service  is 
void,  having  been  made  by  a  married  woman.  At  common 
law  and  by  general  principle  it  is  clearly  so  ;  and  therefore  it 
is  incumbent  upon  the  master  to  shew  some  written  law,  that 
will  take  the  case  out  of  the  common  rule.  Written  law- 
there  is  none ;  and  the  absence  of  it  in  a  state  where  the 
most  signal  efforts  have  been  made  in  favour  of  the  blacks, 
is  evidence  that  the  legislature  did  not  intend  to  disturb 
the  common  law,  considering  it  perhaps  as  beneficial  to 
the  black  to  remain  in  her  original  condition,  as  to  be 
under  the  control  of  her  master  and  her  husband  as  to  the 
terms  of  her  manumission.  Although  the  husband  consent- 
ed in  this  case,  his  consent  is  of  no  avail.  A  husband  has 
no  authority  to  transfer,  or  to  consent  to  the  transfer  of  his 
wife's  services.  The  only  instance  in  which  our  law  permits 
husband  and  wife  to  bind  themselves  to  service,  is  in  the 
ease  of  German  redemptioners,  which  is  provided  for  by  the 
acts  of  8th  April  1785, 2  State  Laws  325,  and  22d  April  1794, 
3  State  Laws  557.  A  special  provision  for  such  a  case,  ex- 
cludes other  cases  :  and  even  in  relation  to  redemptioners, 
the  rule  of  construction  applied  to  the  acts  is  extremely 
strict.  The  indenture  must  be  made  in  precise  conformity 
to  them,  or  it  is  void.  Commonwealth  v.  M^Corkle  (a). 
(a)  Brwme't  Rep.  295. 


208  CASES  IN  THE  SUPREME  COURT 

1814.  Hopkinson  contra.    At  the  time  of  the  agreement,  in  con- 

COMMON.     sequence  of   which  the  manumission  and  indenture  were 
WEALTH      made,  Susan  Stephens  was    not  a  married   woman.     Her 
v-  cohabitation   with  Stephens,  was  what  the   civil  law  called 

MEN1  s*  contubernium,  not  connubium.  It  did  not  partake  of  lawful 
marriage,  because  being  a  slave  she  could  not  contract  it, 
or  in  any  way  remove  herself  from  the  legal  control  of  her 
master.  Cooper's  Just.  420.  She  was  still  a  slave  ;  her  issue 
would  have  been  a  slave,  and  it  is  in  reference  to  such  a  case 
that  the  law  must  be  considered.  The  indenture  was  good, 
then,  because  it  was  a  fair  contract  for  a  reasonable  term  of 
service,  made  with  the  consent  of  her  husband,  and  in  con- 
sideration of  freedom.  The  ordinary  rules  of  law  are  not 
applicable  to  slaves  in  this  state.  The  incapacities  of  a  slave 
are  such,  that  according  to  general  principles  he  can  make  no 
/  contract;  yet  no  one  ever  doubted  that  a  contract  of  service 
entered  into  by  an  unmarried  slave  in  consideration  of  free- 
dom, was  binding  :  and  under  what  greater  incapacity  does 
a  married  slave  lie  than  a  single  one  ?  The  disabilities  of 
slavery  merge  all  others  ;  and  if  the  law  in  this  country 
has  adopted  a  rule  that  puts  aside  the  greater  disability,  in 
order  to  give  the  slave  an  opportunity  of  procuring  his  free- 
dom, it  will  of  course  consider  marriage,  which  is  a  less 
restraint,  as  subject  to  the  same  rule.  The  instances  in 
which  our  law  has  from  convenience  left  the  common  law, 
are  numerous.  It  has  done  so  particularly  as  to  conveyances 
by  femes  covert,  which  from  the  first  settlement  of  the  province 
were  made  without  the  ceremonies  of  a  fine.  The  incapa- 
cities of  a  feme  covert  are  intended  for  her  protection  ;  they 
never  should  be  permitted  to  stand  in  the  way  of  her  eman- 
cipation from  slavery.  But  with  what  propriety  can  this 
woman  question  this  contract  ?  The  manumission  and  the 
indenture  were  one  act.  If  the  indenture  had  been  to  her 
master,  it  is  impossible  that  the  manumission  could  have 
been  good,  and  the  indenture  void;  and  it  is  the  same  as  to  the 
master,  when  it  is  made  with  his  consent  to  a  third  person, 
who  pays  him  the  pi  ice  of  freedom  at  the  solicitation  of  the 
slave,  and  in  consideration  of  the  indenture.  If  she  is  there- 
fore not  bound  as  a  servant,  she  is  still  bound  as  a  slave ; 
and  she  is  of  course  applying  to  this  Court,  to  be  restored 
with  her  offspring  to  the  condition  of  slavery. 


OF  PENNSYLVANIA.  209 

TILGHMAN  C.  J.  after  particularly  stating  the  facts,  deli-        1814. 
vercd  his  opinion  as  follows :  COMMON- 

It  is  not  denied  by  the  counsel  for  Susan  Stephens  that  by      WEALTH 
the  law  of  this  state,  a  negro  slave  under  the  acre  of  twenty-  Vf 

one  years,  may  in  consideration  of  a  manumission  bind  her- 
self till  the  age  of  twenty-eight  years,  or  for  the  term  of 
seven  years,  if  above  the  age  of  twenty-one  at  the  time  of 
executing  the  indenture.  But  he  rests  his  client's  case  on 
the  circumstance  of  her  being  a  married  woman  at  the  time 
of  binding  herself.  The  general  principle  undoubtedly  is, 
that  the  deed  of  a  married  woman  is  void.  Yet  this  rule  is 
not  without  exceptions.  On  the  first  settlement  of  Pennsyl- 
vania, when  land  was  not  of  much  value,  and  business  was 
transacted  with  less  form  than  at  present,  a  practice  pre- 
vailed for  married  women  to  convey  their  rights  to  land 
by  a  common  deed,  in  which  they  were  joined  with  their 
husbands.  These  conveyances  were  held  good,  though 
against  the  principles  of  the  common  law  of  England.  It 
has  always  been  the  policy  of  our  government  to  encou- 
rage emigrations  from  Europe,  and  in  order  to  facilitate 
them,  husband  and  wife  have  been  permitted  to  be  bound 
to  service  for  a  term  of  years,  to  enable  them  to  raise 
money  to  pay  for  their  passage.  It  appears  by  an  expression 
in  the  13th  section  of  the  act  of  22d  April  1794,  (for  regu- 
lating the  importation  of  German  and  other  passengers  &c.) 
that  this  kind  of  servitude  was  by  custom.  In  both  these 
instances,  it  was  thought  reasonable  to  break  through  the 
rule  of  the  common  law,  and  yet  in  neither  of  them  was  the 
interest  of  the  wife  so  much  consulted,  as  in  the  case  now 
under  consideration.  It  is  indeed  a  case  sui  generis,  to 
which  the  common  law  of  England  furnishes  no  parallel.  In 
the  first  place,  neither  Susan  Stephens  nor  her  husband  could 
acquire  any  rights  by  marriage  in  derogation  of  the  rights 
of  her  master,  who  retained  the  absolute  control  over  her 
person  and  her  services.  He  had  a  right  to  separate  her 
from  her  husband,  and  carry  her  to  Maryland.  Her  situation 
is  so  totally  different  from  that  of  a  free  woman,  that  the 
same  principles  of  law  cannot  suit  the  conditions  of  both. 
If  the  common  law  adjudges  the  deed  of  a  married  free 
woman  to  be  void,  it  is  because  she  is  supposed  to  have  no 
will  of  her  own,  being  under  the  power  of  her  husband.  She 

VOL.  VI.  2  D 


210  CASES  IN  THE  SUPREME  COURT 

1814.        is  not  permitted  to  obligate  herself  therefore,  even  with  the 
COMMON-     consent  of  her  husband,  lest  she  should  be  induced  to  act 
WEALTH      not  according  to  her  own  will,  but  to  his  will.  The  princi- 
v.  pie  is  established  for  her  protection.  But  the  slave  is  under 

CLEMENTS.  tne  power  not  of  ner  husband,  but  her  master.  Now  s\*p- 
pose  the  master  had  been  willing  to  relinquish  his  rights  so 
far  as  to  give  freedom  to  his  slave,  on  condition  she  would 
serve  him  for  three  years.  Can  it  be  doubted,  that  the  law 
would  permit  her  to  make  a  contract,  by  which  she  would 
be  so  great  a  gainer  ?  If  the  contract  had  been  prohibited, 
she  as  well  as  her  child  must  have  remained  slaves  for  life. 
So  that  this  same  principle  which  protects  a  free  woman, 
would  oppress  a  slave,  by  preventing  her  acquisition  of  free- 
dom. I  can  have  no  doubt  therefore  but  that  in  case  of  a 
slave,  the  general  principle  of  the  common  law  is  to  be  re- 
jected, and  a  new  principle  adopted,  calculated  for  the  con- 
dition, and  operating  for  the  benefit  of  the  slave.  I  consider 
the  case  of  Susan  Stephens  the  same  in  substance,  as  if  she 
had  been  bound  to  serve  Maxwell,  her  former  master ;  be- 
cause the  manumission  by  him,  which  is  the  consideration 
of  the  indenture  of  servitude,  was  produced  by  Clements' 
money,  so  that  in  fact  she  owes  her  freedom  to  Clements.  I 
am  of  opinion  therefore,  that  the  indenture  is  binding,  and 
that  Susan  Stephens  be  delivered  to  her  master  Joseph 
Clements. 

YEATES  J.  The  particular  facts  of  this  case  have  been 
detailed  by  the  Chief  Justice.  It  cannot  be  doubted,  that  the 
contract  of  servitude  made  by  Susan  Stephens,  with  the  full 
consent  of  George  Stephens  her  husband  de  facto,  was  highly 
beneficial  to  herself  and  the  child  whereof  she  was  then 
pregnant.  She  was  the  acknowledged  slave  of  William  Max- 
well of  Maryland,  had  run  away  from  him,  contracted  mar- 
riage without  his  permission  here,  and  being  apprehended, 
her  master  was  in  the  act  of  removing  her  to  Maryland.  If 
this  design  had  been  executed,  both  she  and  her  child  would 
certainly  have  become  slaves  for  life.  Whatever  may  be  our 
ideas  of  the  abstract  right  of  detaining  our  fellow  creatures 
in  slavery,  that  relation  is  recognized  by  most  of  the  states 
in  the  union,  and  is  tolerated  sub  modo  in  this  government. 
A  temporary  servitude  of  three  years  in  Pennsylvania,  has 


OF  PENNSYLVANIA.  211 

been  substituted  by  this  new  indenture,  for  the  horrors  of        1814. 
slavery,  to  which  this  woman  and  her  infant  would  other-     COMMON- 
wise  be  legally  subjected  in  Maryland.  WEALTH 

The  objection  therefore  against  the  validity  of  this  inden-  v- 

ture,  that  at  the  time  Susan  executed  it  she  was  a  married  LEi 
woman,  is  repelled  by  the  fact  that  this  intermarriage  was 
unlawful.  As  a  slave  she  was  incapable  of  entering  into  a 
contract  of  marriage  without  the  master's  consent.  Such  are 
the  deplorable  effects  of  slavery,  from  which  Susan  has  for- 
tunately been  manumitted.  A  slave,  by  running  from  her 
master  in  a  neighbouring  state,  cannot  derogate  from  the 
rights  of  her  master,  nor  obtain  additional  rights  to  herself 
incompatible  with  those  of  her  master. 

But  I  go  much  further.  We  have  adopted  the  common 
law  of  England  BO  far  as  it  is  applicable  to  our  local  situa- 
tion and  circumstances,  but  no  further.  Slavery  is  unknown 
in  England,  and  therefore  arguments  deduced  from  their  law 
as  to  slaves,  can  afford  no  useful  information.  The  usages 
and  customs  which  have  obtained  amongst  ourselves  are 
well  known  to  have  influenced  the  decisions  of  our  courts 
of  justice  against  the  known  law  of  England.  This  appears 
clearly  from  Davy  et  uxor's  Lessee  v.  Turner,  and  Lloyd's 
Lessee  v.  Taylor,  1  Dall.  11. 17.  Now  we  well  know  that 
minors,  husbands  and  wives  coming  from  Germany,  Holland 
and  Ireland,  have  often  bound  themselves  as  servants  for 
limited  periods,  in  consideration  of  their  passages  from 
Europe,  and  such  indentures  have  always  been  deemed 
valid.  The  same  remark  may  be  made  of  contracts  entered 
into  by  people  of  colour  standing  in  the  relation  of  husband 
and  wife,  and  of  minors,  where  there  has  been  a  fair  and 
honest  consideration  paid,  and  no  undue  advantage  taken 
of  their  situation  and  ignorance.  That  this  contract  was  fair 
in  all  its  parts,  advantageous  to  both  husband  and  wife,  who 
will  not  be  torn  from  each  other,  and  to  their  child  also,  is 
unquestionable.  That  Clements  should  be  subjected  to  the 
loss  of  200  dollars  paid  to  William  Maxivell  for  the  manu- 
mission of  the  woman,  is  against  all  equity  and  good  con- 
science, I  cannot  possibly  doubt.  I  am  therefore  clearly  of 
opinion,  that  Susan  Stephens  be  remanded  to  the  custodv  of 
her  master. 


212 


CASES  IN  THE  SUPREME  COURT 


1814.  BRACKENRIDGE  J.  I  have  read  an  account  of  a  case,  real 

~~£  "  or  fictitious,  I  will  not  say  which ,  decided  in  some  country 

WEALTH  under  the  civil  law,  which  has  been  generally  received  as  a 
v.  ground  of  the  law  of  nations  ;  and  this  question  which  re- 

CLEMENTS.  Spects  the  rights  of  a  slave,  cannot  but  be  considered  as  hav- 
ing some  relation  to  the  law  of  nations,  or  at  least  authorities 
of  general  law  may  be  read  in  the  case.  The  case  to  which 
I  refer,  and  have  in  my  mind,  was  said  to  be  as  follows : 

A  person  passing  by  a  pool,  missed  a  foot  and  slipped  in. 
He  was  over  his  depth,  and  the  bank  was  steep.  A  shepherd 
observing  him  from  a  height,  hastened  to  his  assistance,  and 
entangling  his  crook  in  the  garments  of  the  drowning  man, 
drew  him  out.  But  in  attempting  to  fix  his  crook  in  the  first 
instance,  he  had  hurt  the  eye  of  the  stranger  in  the  pool,  and 
which  afterwards  occasioned  the  loss  of  it.  The  stranger  so 
rescued,  brought  his  suit  and  claimed  damages ;  for  it  is  a 
principle  of  our  law,  derived  from  the  civil,  Southcote*s  case, 
Coke,  Coggs  v.  Barnard,  Ld.  Raymond,  and  Jones  on  Bail- 
ments, that  even  voluntary  service  and  without  reward,  if 
unskilfully  performed,  may  partake  of  the  nature  of  injury, 
and  require  damages. 

The  Court  decided,  that  the  plaintiff  should  have  his 
election  to  go  back  to  the  same  pool,  and  put  himself  in  the 
same  place,  and  afcer  having  struggled  awhile  and  being  half 
drowned,  if  he  could  get  out  of  himself  and  without  help,  he 
might  come  back  and  prosecute  his  action  ;  this  he  declined, 
and  was  nonsuited.  I  would  propose  to  give  the  applicant  in 
this  case  the  like  election,  which  is  to  annul  the  evidence  of 
her  manumission,  and  procure  her  indenture  to  be  taken  up, 
and  to  put  herself  in  her  master's  hands,  as  at  the  time  when 
she  was  taken  out  of  his  possession,  if  this  can  be  done.  If 
she  cannot  do  this,  or  procure  it  to  be  done,  her  complaint 
under  this  habeas  corpus  must  be  dismissed. 

Prisoner  remanded. 


OF  PENNSYLVANIA.  213 

1814. 
The  Commonwealth  ex  rel.  negro  LEWIS  against    -  -- 

TT  Philadelphia, 

HOLLO  WAY.  Tuesday, 

January  4. 

'T'HIS  was  a  habeas  corpus  to  the  jailer  of  Philadelphia  ,  The  domestic 

1J  J  *          slave  of  a  mem- 

county,  to  bring  up  the  body  of  negro  Lewis.    The  re-  her  of  Congress 

turn  to  the  writ  stated,  that  he  was  held  by  virtue  of   a  &™™  wn^<}Urin'g 
commitment  by  an  alderman  dated  the  29th  of  December  the  recess  of  con- 

J  (jress  attends  the 

1813,  which  commitment  was  founded  upon  an  oath,  that  t*miiy  of  his  ma»- 
was  the  slave   of  Langdon  Cheves  esquire  of  South  whe 


Carolina*  and  had  absconded  from  the  service  of  his  master,  t^6"  a  tempo- 

rary residence, 
does  not  Acquire 

itpon  the  hearing  it  was  agreed,  "that  Langdon  Chev  s[r^^^"s 
"  was  a  native  citizen  and  resident   of  South  Carolina.  and9*ate  i°nge«-thau 

six  mouths. 

"  had  never  resided  any  where  else  but  as  a  sojourner  j  that 
"  he  was  a  member  of  congress  from  that  state,  and  had 
"  sojourned  in  Pennsylvania  for  the  purpose  of  more  con- 
"  veniently  discharging  his  duties  as  a  member  of  congress, 
"  but  without  any  intention  to  become  domiciled  there  ;  that 
"  negro  Lezvis,  who  was  a  domestic  servant,  had  always 
41  been  his  slave  while  residing  in  Pennsylvania,  and  ab- 
"  sconded  from  his  service  in  Germantown  about  the  1st  of 
"  December  1813  ;  that  some  time  in  March  1813,  after  con- 
"  gress  rose,  Mr.  Cheves  came  to  Pennsylvania  bringing 
"  Lewis  with  him  ;  that  he  rented  a  house  in  Germantown^ 
"  and  lived  there  with  his  family  till  some  time  in  Decem- 
tlber  1813,  when  he  went  to  Washington  with  his  family; 
"  and  that  Lewis  lived  with  him  more  than  six  months  in 
"  Pennsylvania^  but  absconded  before  Mr.  Cheves  left  the 
**  state  for  Washington"  Upon  these  facts, 


and  Leivis  for  the  negro,  contended  that  he  was 
free,  by  virtue  of  the  tenth  section  of  the  act  of  1st  March 
1780,  which  enacts  that  "  no  man  or  woman  of  any  nation 
u  or  colour,  except  the  negroes  and  mulattoes  who  shall  be 
"  registered  as  aforesaid,  shall  at  any  time  hereafter  be 
u  deemed,  adjudged  or  holden  within  the  territories  of  this 
"  Commonwealth,  as  slaves  or  servants  for  life,  but  as  free 
"  men  and  free  women."  1  Smith's  Laws  495.  The  excep- 
tion contained  in  that  section,  namely,  of  "  the  domestic 
"  slaves  attending  upon  delegates  in  congress  from  the  other 
"  American  states,  foreign  ministers  and  consuls,  and  per- 


214  CASES  IN  THE  SUPREME  COURT 

1814.  "sons  passing  through  or  sojourning  in  this  state  &c."  they 

COMMON^ argued  did  not  embrace  the   present  case,  because  it  was 

WEALTH  taken  out  of  the  exception,  by  the  proviso  that  "  such  do- 

__      v'  "  mestic  slaves  be  not  (except  in  the  case  of  members  of 

HOLLOWAY.    ,,  f  ..  ,  ,   v  •       j    •        i  • 

"  congress,  foreign  ministers  and  consuls)  retained  in  this 
"state  longer  than  six  months."  Negro  Lewis  they  said  was 
to  be  considered  as  the  slave  of  a  sojourner  for  more  than 
six  months. 

1.  The  basis  of  the  act  of  1780,  is  the  right  of  every  per- 
son to  freedom,  therefore  the  exception  must  be  construed 
strictly.  Under  the  old  confederation,  members  of  congress 
had  a  diplomatic  character.  They  were  in  the  nature  of 
foreign  ministers,  with  whom  they  are  coupled  in  the  act. 
The  intent  of  the  act  was  to  give  to  the  members  of  that 
congress  while  sitting,  and  representing  their  respective 
states,  the  privilege  of  keeping  their  own  servants,  and  of 
bringing  with  them  the  rights  which  were  derived  from  their 
own  law.  But  when  the  present  federal  constitution  was 
adopted,  the  old  one  was  done  away,  and  there  ceased  to 
be  any  delegates  in  congress.  The  act  of  assembly  is  there- 
fore not  applicable  to  the  present  constitution. 

2.  The  privilege  given  by  the  law  is  in  consideration  of, 
and  is  to  be  limited  by,  the  public  functions  of  the  members 
of  congress.  It  is  confined  to  an  actual  attendance  in  con- 
gress, with  an  allowance  of  reasonable  time  cundo,  morando, 
et  redeundo ;  and  does  not  extend  to  a  residence  during 
the  recess  of  congress.    The  words  are  not  members  of,  but 
delegates  in  congress,  and  the  narrowest  construction  should 
be  made. 

3.  Still  less  can  it  be  understood  to   extend  to,  and  to 
except  the  case  of  a  family  residing  here  during  the  recess, 
for  their  personal  convenience,  when  the  congress  meet  in 
another  state.     The  spirit  of  the  law  is  as  averse  to  such  a 
construction  as  the  letter.  Pennsylvania  voluntarily  imparted 
the  privilege  to  members  of  congress,  because  congress  was 
then  held  in  Pennsylvania,  and  it  was  necessary  of  course 
that  the  delegates  should  reside  there.  The  act  contemplates 
the  case  of  a  congress  in   Pennsylvania  only  f  it  speaks  of 
slaves  attending  upon  delegates  in  congress.     To  enlarge 
the  exception,  is  to  violate  the  intention  of  the  legislature. 
Residence  in  this  state  not  being  necessary,  while  congress 


OF  PENNSYLVANIA.  215 

sits  at  Washington,  the  reason  of  the  exception  fails,  and        1814. 
the  exception  itself  must  therefore  fail.  COMMON- 

WEALTH 

Sergeant  contra.  The  intent  and  the  true  policy  of  this          v. 
state  in  the  act  of  1780,  was  to  pay  respect  to  the  other  HOLLOWAY. 
members  of  the  confederation  in  the  person  of  their  repre- 
sentatives. It  was  a  policy  essentially  necessary  to  the  peace- 
ful intercourse  of  the  states,  and  almost  to  their  equality. 
There  is  therefore  no  propriety  in  giving  a  narrow  con- 
struction to  what  so  evidently  flowed  from  a  liberal  spirit. 

1.  The  change  of  the  confederation  for  the  present  con- 
stitution, makes  no  change  in  the  law.  So  far  as  the  object 
and  intention  of  the  law  are  concerned,  a  member  of  the  old 
congress  and  of  the  present  congress  are  the  same.  It  is  still 
a  confederated  government.  The  same  respect  is  due  by  this 
state,  to  the  southern  states  and  their  representatives.    The 
exception  was  not  made  in  consequence  of  any  temporary 
interest  which  the  state  had  in  the  confederation,  or  of  any 
particular  virtue  in  the  delegates  to  that  body ;  but  in  con- 
sequence of  its  general  interest  in  the  success  of  the  union, 
and  on  the  general  necessity  of  granting  this  accommodation 
to  representatives  in  the  common  legislature.     This  state 
itself  has  declared  that  the  law  extends  to  the  present  con- 
gress. The  constitution  of  the  United  States  was  adopted 
by  Pennsylvania  on  the  12th  of   December  1787.  On  the 
29th  of  March  1788,  a  law  was  passed,  expressly  recog- 
nizing the  last  exception  to  the  tenth  section  of  the  act  of 
1780,  as  being  then  in  force.  2  Smith's  Laws  443. 

2.  The  privilege  of  the  member  of  congress  is  not  limited 
to  his  attendance  upon  that  body,  or  to  his  going  and  re- 
turning.    The  language  is  general,  "  slaves  attending  upon 
"  delegates  in  congress."    The  verbal  criticism  upon  this 
phrase,  has  no  weight.  In  the  last  exception  it  is  exchanged 
for  "  members  of  congress,"  and  both  are  thus  treated  as 
convertible  expressions.   It  is  of  great  moment  at  times,  for 
the  dispatch  of  business  in  the  vacation,  for  the  more  con- 
venient discharge  of  other  business,  and  in  consequence  of  the 
state  of  the  country,  that  members  of  congress  should  not 
return  home  after  a  session.    The  law  may  reasonably  be 
considered  as   embracing  such  a  case.     In  the  present  in- 
stance, there  was  a  special  session  in  May  1813.  The  war 


216 


CASES  IN  THE  SUPREME  COURT 


1814. 


COMMON- 
WEALTH 
v. 

HOLLOWAY. 


prevented  the  return  to  Charleston  by  water.  A  residence iu 
some  of  the  middle  states  was  therefore  almost  essential  to 
Mr.  Cheves,  for  he  could  nor  go  in  any  manner  before  May, 
and  two  journeys  by  land  after  May  and  before  the  ensuing 
session,  might  have  been  impracticable.  If  the  act  had  in- 
tended to  restrict  the  privilege  in  the  manner  contended 
for,  it  would  have  used  the  language  of  the  constitution  in 
regard  to  arrests  of  members  of  congress.  They  are  privi- 
leged from  arrest,  "during  their  attendance  at  the  session 
"of  their  respective  houses,  and  in  going  to,  and  in  return- 
"  ing  from  the  same." 

3.  The  law  is  not  confined  to  the  case  of  a  congress  in 
Pennsylvania.  The  words  do  not  say  so.  The  spirit  of  the 
law  is  certainly  not  so.  And  it  is  a  complete  answer  to  the 
suggestion,  that  when  the  act  of  1788  recognized  the  last 
exception  in  the  act  of  1780,  congress  were  actually  sitting 
in  New  Tork. 

TILOHMAN  C.  J.  Negro  Lewis,  who  is  brought  before  us 
on  this  habeas  corpus,  was. committed  by  Alderman  Keppele 
as  the  slave  of  Langdon  Cheves  esquire,  having  absconded 
from  his  master's  service.  Mr.  Cheves  is  a  member  of  the 
house  of  representatives  of  the  United  States,  from  the  state 
of  South  Carolina,  and  has  never  resided  in  this  state,  ex- 
cept as  a  sojourner.  During  the  recess  of  congress  he 
remained  with  his  family,  in  a  house  which  he  rented  in 
Germantown,  in  this  state.  Lewis  was  his  slave,  and  employ- 
ed as  a  domestic  servant  in  his  family  during  his  stay  at 
Germantown  for  more  than  *ix  months,  between  March  and 
December  last.  It  is  contended  that  in  consequence  of  this 
residence,  Lewis  acquired  his  freedom  by  virtue  of  the  act 
"for  the  gradual  abolition  of  slavery,"  (passed  1st  March 
1 780).  The  question  depends  on  the  lOth  section  of  the  act, 
by  which  it  was  enacted,  that  "no  man  or  woman  of  any 
"  nation  or  colour,  except  the  negroes  or  mulattoes  which 
"  shall  be  registered  as  aforesaid,  shall  at  any  time  hereafter 
"  be  deemed,  adjudged  or  holden  within  the  territories  of 
"  this  Commonwealth  as  slaves  or  servants  for  life,  but  as 
"  free  men  or  free  women,  except  the  domestic  slaves  attend- 
"  ing  upon  delegates  in  congress  from  the  other  American 
"  states,  foreign  ministers  and  consuls,  and  persons  passing 


OF  PENNSYLVANIA.  217 

"  through  or  sojourning  in  this  state,  and  not  becoming  resi-        1814. 
"  dent  therein,  and  seamen  employed  in  ships  not  belonging     COMMON- 
u  to  any  inhabitant  of  this  state,  nor  employed  in  any  ship     WEALTH 
"  owned  by  any  such  inhabitant,  provided  such  domestic  u< 

"  slaves  be  not  alienated  or  sold  to  any  inhabitant,  nor  ° 
"  (except  in  the  case  of  members  of  congress,  foreign  minis- 
u  ters  and  consuls)  retained  in  this  state  longer  than  six 
"  months."  The  plain  meaning  of  this  section  appears  to  be, 
that  the  domestic  slaves  attending  upon  members  of  con- 
gress, (other  than  members  from  Pennsylvania)  are  excepted 
from  the  general  provision  which  confers  freedom.  But 
several  ingenious  arguments  have  been  urged  to  prove  that 
this  act  has  a  more  refined  and  less  obvious  meaning.  First 
of  all,  it  is  said,  that  having  been  passed  before  the  adoption 
of  the  present  federal  constitution,  it  can  have  no  application 
to  the  congress  under  the  present  constitution.  I  cannot 
perceive  the  force  of  this  objection.  To  be  sure,  the  con- 
gress of  the  United  States  under  the  old  confederation,  is  in 
many  respects  different  from  the  present  congress.  But  the 
object  and  foundation  of  both  is  the  same  ;  they  are  both 
founded  on  a  federative  union,  and  the  object  of  both  is  the 
general  defence  and  welfare  ;  both  require  that  the  members 
representing  the  several  states  should  meet  at  some  one 
place,  and  it  is  as  necessary  that  the  members  from  the 
southern  states  in  the  present  congress  should  be  attended 
by  their  domestics,  as  it  was  for  the  members  of  the  old 
congress.  In  fact  I  do  not  recollect  to  have  heard  of  this 
distinction  before,  and  considering  that  congress  sat  ten 
years  in  this  city  under  the  present  constitution,  during  all 
which  time  the  members  from  the-  southern  states  were 
attended  by  their  slaves  without  molestation,  there  is  strong 
reason  for  supposing  that  the  construction  now  contended 
for  is  contrary  to  that  which  has  been  generally  received. 
And  that  it  is  contrary  to  the  construction  of  our  own 
legislature,  appears  from  the  third  section  of  the  act  "  to  ex- 
"  plain  and  amend  the  act  for  the  gradual  abolition  of 
"slavery,"  passed  29th  March  1788,  a  few  months  after 
the  present  federal  constitution  had  been  ratified  by  this 
state.  In  this  section  it  is  enacted,  "  that  no  negro  or  mu- 
"  latto  slave,  (except  as  in  the  last  exception  of  the  tenth 
"  section  of  the  original  act  is  excepted)  shall  be  removed 
VOL.  VI.  2  E 


218 

1814.  _  "out  of  the  state."  Now  the  last  exception  in  the  tenth 
COMMON-  section,  relates  to  members  of  congress,  foreign  ministers  and 
WEALTH  consuls  ;  so  that  the  proviso  in  their  favour  was  considered 
HOLLOWAY.  ^s  sti11  in  *°rce-  The  next  positron  of  the  counsel  for 
the  habeas  corpus  is,  that  our  net  is  confined  to  mem- 
bers of  congress,  during  the  time  of  its  session,  allowing  a 
reasonable  time  for  going  and  returning.  The  expression  of 
the  act  is,  delegates  in  congress  ;  but  I  take  this  to  be  the 
same  as  delegates  to  congress,  or  in  other  words  members 
of  congress,  and  that  this  is  the  meaning  of  the  law  is  cer- 
tain, because,  in  the  proviso  in  the  last  part  of  the  same 
section,  members  of  congress  are  the  words  used.  It  is  next 
contended,  that  whatever  may  be  the  literal  meaning  of  the 
words,  the  real  object  of  the  law  was  to  give  to  members  of 
congress  the  benefit  of  their  slaves  during  the  time  of  their 
attendance  on  their  public  duty  only.  I  agree  that  it  is  fair 
to  construe  the  law  according  to  its  meaning,  provided  that 
meaning  is  deduced  not  from  conjecture,  but  from  the  words 
of  the  law ;  at  the  same  time  I  am  not  for  adhering  to  rvords, 
so  far  as  to  produce  consequences  too  absurd  or  incon- 
venient, to  be  supposed  to  have  been  intended  by  the  legis- 
lature. But  I  see  no  absurdity  or  inconvenience  in  giving 
to  these  words  their  obvious  meaning,  which  will  only  con- 
fer on  members  of  congress  the  privilege  of  being  served  by 
their  domestics  during  the  time  that  they  remain  members, 
whether  congress  shall  be  sitting  in  this  or  any  other  state. 
On  the  contrary,  I  see  great  inconvenience  in  reducing  the 
southern  members  to  the  necessity  of  giving  up  their  resi- 
dence in  this  state  during  the  recess  of  congress,  or  losing 
the  service  of  their  domestics.  In  the  case  of  Mr.  Cheves, 
this  inconvenience  would  be  very  great  indeed,  because 
there  was  a  session  of  congress  between  March  and  De- 
cember, his  return  to  Charleston  by  water  was  cut  off,  and  it 
was  impossible  to  say  whether  the  events  of  the  war  might 
not  have  induced  the  president  of  the  United  States  to  con- 
vene the  congress  before  the  month  of  December.  We  all 
know  that  our  southern  brethren  are  very  jealous  of  their 
rights  on  the  subject  of  slavery,  and  that  their  union  with 
the  other  states  could  never  have  been  cemented,  without 
yielding  to  their  demands  on  this  point.  Nor  is  it  conceiva- 
ble that  the  legislature  of  Pennsylvania  could  have  intended 


OF  PENNSYLVANIA.  219 

to  make  a  law,  the  probable  consequence  of  which  would        1814. 
have  been  the  banishment  of  the  congress  from  the  state.     COMMON- 
I  am  therefore  of  opinion  that  the  true  construction  of  the      WEALTH 
law,  is  that  which  is  impressed  on  the  mind  by  its  first  read-  v" 

ing,  that  is  to  say,  that  the  domestic  slaves  of  members  of 
congress  who  are  attending  on  the  family  of  their  masters 
even  during  its  recess,  gain  no  title  to  freedom,  although 
they  remain  in  the  state  more  than  six  months,  whether  the 
seat  of  congress  be  in  Pennsylvania  or  elsewhere.  Accord- 
ing to  this  construction  the  prisoner  is  to  be  remanded  to 
the  custody  of  the  jailer. 

YEATES  J.  The  present  case  appears  to  me,  to  be  clearly 
within  the  words  and  spirit  of  the  exception  contained  in 
the  tenth  section  of  the  act  of  1st  March  1780.  Mr.  Cheves 
is  a  member  of  congress,  and  within  the  principle  for  which 
the  privilege  was  introduced ;  and  a  different  construction 
from  that  contended  for  on  his  behalf,  would  place  him 
upon  the  footing  of  a  mere  sojourner,  which  is  repugnant 
to  the  plain  terms  of  the  law. 

I  concur,  that  Lewis  be  remanded  to  the  jailer. 

BRACKENRIDGE  J.  concurred. 

Prisoner  remanded. 


KOHNE  against  The  Insurance  Company  of  North Phii 

Amprira  Saturday, 

America.  January  8th. 

THIS  was  an  insurance  on  Roods  on  board  the  Gadsden,    Goods  consist- 
i  -    «ng  of  cocou,  mdi- 

at  and  from  Newport,  Rhode  Island,  to  Port  Passage  in  go,  tobacco,  &e., 

were  insured  in 

October  1799,  on  board  the  ship  Gadsden,  from  Newport ,  Rhode  Island,  to  Passage  in  Spain. 
The  goods  were  part  of  a  cargo,  which  had  been  imported  in  the  same  ship  lYom  Laguira  to 
Charleston,  and  there  by  permission  of  the  custom  house  officers,  suffered  to  remain  ou  board, 
being  entered  for  exportation  and  bonds  given  for  the  duties.  Other  goods  were  then  put  on  board, 
with  which  she  sailed  for  Passage  ;  but  being-  forced  in  consequence  of  an  accident  to  put  into 
Newport,  the  whole  cargo  was  there  taken  out,  and  after  some  repairs  was  reshippcd  in  the  same 
•vessel,  which  then  sailed  upon  the  voyage  insured  The  order  of  insurance  only  mentioned  the  kind 
of  goods,  hut  nothing  was  said  of  the  importation  from  Lagvirat  pop  of  the  circumstances  attend- 
ing the  exportation  from  Charleston,  although  the  British  order  of  25th  January  17'J8,  was  then 
well  known  in  the  United  States, 
Held  1 .  That  this  was  a  material  concealment  which  avoided  the  policy. 

2.  That  the  underwriters  were  not  bound  to  inquire  into  the  origin  or  history  of  the  cargo,  in 
consequence  of  knowing  that  the  articles  insured  were  such  as  the  Spanish  colonies  produce  ;  but 
it  was  the  duty  of  the  insured  to  inform  them. 

3.  That  by  the  true  construction  of  the  order  of  January  1798,  the  -voyage  from  the  colony  to 
the  mother  country  must  be  indirect,  and  not  merely  the  course  of  the  voyage  :  and 

4.  Whether  the  importation  at  Charleston  was  legal  or  not,  it  was  at  least  so.  unusual  and  suspi- 
cious, that  it  was  the  duty  of  the  insured  to  communicate  it  to  the  insurer. 


220  CASES  IN  THE  SUPREME  COURT 

1814.        Spain,  warranted  the  property  of  the  plaintiff  a  citizen  of 

KOHNE *he  United  States,  proof  to  be  made  in  Philadelphia  only. 

v.  The  policy  was  dated  the  12th  October  1799,  and  was  for 

INS.  COMPANY  15,400  dollars  at  14  per  cent.     The  order  of  insurance  de- 

N    AMERICA  scfibed  tne  property  as  being  cocoa,  indigo,  sugar,  tobacco 

Sec.,  but  gave  no  other  particulars. 

The  cause  was  tried  before  the  Chief  Justice  in  November 
last,  when  contrary  to  his  charge,  the  jury  found  a  verdict 
for  the  plaintiff;  and  now  upon  a  motion  by  the  defend- 
ants for  a  new  trial,  his  honour  reported  the  case  to  be  as 
follows  : 

The  ship  Gadsden,  laden  with  the  goods  insured,  the 
property  of  the  plaintiff,  an  American  citizen,  sailed  from 
Newport  for  Passage  on  the  6th  of  September  1 799,  and  on 
the  lOth  of  the  same  month  was  captured  by  the  British 
ship  of  war  Pheasant,  and  carried  to  Halifax,  where  she  was 
condemned  with  part  of  her  cargo,  including  part  of  the  goods 
insured.  The  defence  relied  upon  was  concealment,  in  refer- 
ence to  which  the  facts  were  these.  In  the  beginning  of  the 
year  1799,  the  plaintiff  carried  in  the  same  ship  a  cargo  of 
linens  &c.  from  Charleston  to  Laguira,  which  he  there  sold 
to  the  agents  of  the  Spanish  government;  and  at  Laguira 
and  Porto  Caballo,  he  received  from  them  in  return,  and  took 
in,  a  cargo  of  cocoa,  tobacco,  indigo  &c.,  which  he  carried 
to  Charleston.  Part  of  the  cargo  was  there  unladen  ;  and 
part,  being  entered  for  exportation,  and  the  duties  bonded, 
was  permitted  by  the  custom  house  officers  to  be  retained 
on  board,  as  was  frequently  done  there  in  similar  cases. 
The  ship  was  afterwards  cleared  out  for  Passage,  and  sailed 
with  a  cargo  consisting  in  part  of  the  cocoa,  indigo  &c. 
brought  from  Spanish  America,  and  which  had  not  been 
taken  out  of  the  ship,  and  in  part  of  other  articles  shipped 
at  Charleston.  In  going  out  of  the  port  of  Charleston,  the 
ship  struck  on  the  bar,  and  suffered  considerable  injury,  in 
consequence  of  which  she  put  into  Newport.  The  cargo  was 
there  taken  out,  and  the  vessel  being  repaired,  it  was  re- 
shipped,  and  departed  upon  the  voyage  insured  with  the 
original  Spanish  papers,  shewing  the  origin  of  part  of  the 
cargo.  None  of  these  circumstances  were  made  known  to 
the  defendants  at  the  time  of  effecting  the  insurance  ;  and  it 


OF  PENNSYLVANIA.  221 

was  shewn,  that  the  defendants  had  asked  such  premiums  as        1814. 

amounted  to  declining  the  risks,  where  there  had  been  an  im- 

portation  without  landing.    The  judge  of  Vice  Admiralty  at 

Halifax,  by  his  decree,  condemned  the  ship,  and  so  much  of  Ixs.  COMPANY 

the  goods  as  had  not  been  landed  at  Charleston,  and  restored   „     .  °^ 

A,  N.  AMERICA. 

the  rest. 

The  Chief  Justice  submitted  it  to  the  jury,  whether  the 
defendants  ought  not  to  have  been  informed,  that  part  of  the 
cargo  had  been  brought  from  Spanish  America  in  the  Gads- 
den,  and  not  landed  at  Charleston,  telling  them  at  the  same 
time,  that  in  his  opinion  such  information  was  necessary. 

Hopkinson  and  Ingersoll  for  the  defendants.  In  this  case 
the  jury  disregarded  the  charge  and  the  law  j  and  if  they 
have  committed  merely  an  error  in  fact,  yet  it  being  a  plain 
one,  the  Court  will  grant  a  new  trial.  In  Hoyt  v.  Oilman  (a) 
the  Court  said,  that  if  the  jury  found  wrong  with  regard  to 
a  fraudulent  concealment,  they  would  order  a  new  trial. 

The  concealment  of  facts  relative  to  the  importation  of 
the  cargo  in  the  same  ship,  and  its  not  being  landed  at 
Charleston,  was  material,  these  circumstances  having  greatly 
increased  the  risk.  On  the  25th  January  1798,  the  order  in 
council  was  passed,  which  directed  the  British  cruisers  to 
seize  and  bring  in  for  adjudication,  all  ships  laden  with  the 
produce  of  French,  Spanish,  or  Dutch  colonies,  and  going 
directly  from  thence  to  any  port  in  Europe,  not  English,  nor  the 
port  of  that  country  to  which  the  ship  belonged.  This  order 
in  council  was  universally  known ;  and  if  the  facts  brought 
this  case  within  it,  it  was  the  duty  of  the  assured  to  commu- 
nicate them,  whether  that  order  or  the  decisions  under  it 
were  or  were  not  conformable  to  the  law  of  nations.  Sperry 
v.  Delaware  Ins.  Co.  (£),  Kohne  v.  Ins.  Co.  N.  A.  (c).  The 
conformity  of  the  order  to  national  law,  is  of  no  importance 
between  these  parties.  That  the  facts  brought  the  case  within 
the  order  is  clear,  because  it  was  so  held  in  this  very  case, 
and  has  been  so  held  repeatedly  since.  The  Immanuel  (d). 
The  William  (<?).  It  was  justly  so  held.  The  voyage  was  a 
direct  one  from  Spain  to  the  mother  country  ;  not  in  course, 

(a)  8  Mais.  Rep.  336.  (,/)  2  Rob.  169. 

(6)  I  Candy's  Mar.  473,  (e)  5  Rob.  349. 

(<r)  Ibid. 


222  CASES  IN  THE  SUPREME  COURT 

1814.        butinplan.  The  documents  provingthe  Spanish  origin  of  the 

KOHNE —  cargo  were  on  board,  to  be  used  in  Spain.     There  was  no 

•v.  importation  in  the  United  States,  no  landing-  according  to 

INS.  COMPANY  the  case  of  The  Polly,  (a)  to  break  the  continuity  of  the 

xr    A  ^  v°yage)  or  to  shew  a  bona  fide  intention  of  terminating  the 

IN.    /VMERICA.  f  '  <      f 

voyage  in  the  United  states.  Ihe  permission  by  the  custom 
house  officers  to  retain  the  cargo,  was  unwarranted  by  law ; 
there  can  be  no  importation  without  landing ;  the  officers  can 
not  execute  their  duty  without  landing.  1  U.  S.  Lazvs  185. 
193.  2O9.  211.  231.  233,  234.  This  which  is  called  an  im~ 
portation,  was  therefore  an  illegal  act,  which  neither  our  own 
nor  foreign  courts  can  respect.  But  if  legal,  it  was  at  least 
novel.  It  was  unknown  in  many  parts  of  the  United  States. 
It  was  calculated  to  excite  suspicion,  and  therefore  to  these 
defendants  who  knew  nothing  of  the  practice  of  Charleston, 
it  ought  to  have  been  communicated.  The  assured  cannot 
say  that  the  underwriters  were  bound  to  enquire  into  this, 
or  the  history  of  the  voyage.  Not  into  this,  because  Charles- 
ton was  not  mentioned  to  them.  Nervport  was  the  place  of 
departure.  Nor  into  the  voyage,  because,  though  the  articles 
insured  were  mentioned,  nothing  was  said  of  their  origin,  or 
of  the  ship  in  which  they  came.  These  were  facts  within 
the  private  knowledge  of  the  assured,  about  which  under- 
writers are  not  bound  to  enquire,  Parkin  v.  Dick  (b)  ;  not 
public  transactions,  foreign  laws,  or  the  course  of  trade, 
which  it  is  their  duty  to  know.  It  is  clear  beyond  doubt,  that 
had  the  defendants  known  the  facts  that  were  withheld,  they 
would  have  declined  the  risk,  or  asked  a  higher  premium. 
In  Lynch  v.  Dunford  (c)  the  policy  was  held  void,  because 
material  intelligence  respecting  the  risk  was  not  commu- 
nicated, although  it  turned  out  to  be  false. 

Levy  and  Raivle  for  the  plaintiff.  It  was  left  to  the  jury 
to  decide,  whether  the  facts  not  communicated,  were  mate- 
rial to  the  risk,  and  on  this  they  have  passed  in  our  favour. 
They  have  also  passed  upon  the  question,  whether  there  was 
not  a  sufficient  disclosure  to  put  the  defendants  upon  en- 
quiry. Their  verdict  ought  not  to  be  disturbed.  In  Williams 
v.  Delajield  (</,)  the  judge  was  of  opinion  that  there  was  a 

(«)  2  Bob.  295.  (c)  14  East  494. 

( 6)  Campb.  22! .  ( J)  2  Caines  329 . 


OF  PENNSYLVANIA. 

material  concealment,  but  the  jury  found  the  contrary,  and        1814. 
a  new  trial  was  refused.  In  Long  v.  Duff  (a),  it  was  left  to  ~ 


the  jury  to  decide,  whether  according  to  usage,  it  was  the          v. 
duty  of  the  insurer  to  enquire  into  certain  facts,  and  a  newI 

trial  was  refused.  * 

m,     r        T  i   i  •  i    i  «.  AMERICA 

The  tacts  it  concealed  were  not  material,  because  they 

did  not  bring  the  case  within  the  true  construction  of  the 
order  of  January  1798.  What  the  subsequent  decisions  of 
the  English  admiralty  have  been,  is  of  no  importance  j  they 
had  not  occurred  prior  to  this  insurance.  The  only  point  is, 
what  will  this  Court  say  the  construction  is  ;  or  in  othetf 
words,  what  is  in  truth  and  fair  reasoning  a  direct  voyage 
from  the  colony  to  the  mother  country.  Every  voyage  is 
direct  in  which  their  is  no  intermediate  port  between  the 
termini  /  a  voyage  is  indirect  in  which  there  is  such  an  in- 
termediate port.  Here  was  the  intermediate  port  of  Charles- 
ton, where  there  was  an  importation  to  satisfy  our  own  law, 
and  also  the  British  decisions.  Our  own  law,  because  there 
is  no  legal  necessity  for  landing  a  cargo,  that  has  been 
entered  for  exportation  ;  nor  is  it  practised  except  to  test 
the  weights  in  case  of  suspicion.  1  Laws  U.  S.  188.  sec.  9, 
10.  16.  26.  29,  30.  The  British  decisions,  because  by  them 
the  spirit  of  the  order  is  to  incutnber  the  goods  with  the 
burden  of  duties  and  additional  freight,  and  the  inconveni- 
ence of  greater  delay.  The  Immanuel  (£).  The  Polly  (<;). 
Goods  may  be  imported  in  the  legal  sense,  though  not  land- 
ed. Leiper  v.  Smith  (d).  Discharging  from  one  ship  into 
another  in  corpore  comitatus,  is  an  importation.  12  Co*  18. 
Freight,  duties,  delay,  all  attended  this  case  as  much  as  an 
actual  landing.  The  admiralty  of  England  is  not  satisfied 
with  landing.  The  William  (e).  Every  thing  is  in  that  Court, 
but  mere  evidence  of  intention  ;  and  in  our  case  the  inten- 
tion bona  fide  to  import,  is  inferrible  from  landing  part  of 
the  cargo,  and  afterwards  adopting  the  voyage  in  question. 
On  this  the  jury  have  also  passed.  The  Spanish  papers  on 
board,  served  as  certificates  of  origin  to  prevent  captures 
by  the  French. 

But  the  facts  were  not  concealed,  because  it  was  the  duty 
of  the  underwriters  to  take  notice  of  them,  or  to  make 

(«)  2  .Bos.  &Piil.  C09.  (c)  2  Rob.  301.  (e)  5  Rob.  349. 

(i)  2  Sob.  109.  (<0  Bmb.  79. 


224  CASES  IN  THE  SUPREME  COURT. 

t8l4.        enquiry.    As  to  the  mode  of  importing  at  Charleston,  they 

KOHNE       were  bound  to  know  the  custom  of  that  place ;  and  as  to  the 

v.  origin  and  history  of  the  cargo,  they  must  have  known  that 

INS.  COMPANY  it  came  from  a  Spanish  colony,  and  was  going  to  Spain. 

N.  AMERICA       ^  'l  concerne^  them  to  know  in  what  vessel  imported,  and 

whether  landed  or  not,  there  was  sufficient  told  them,  to 

lead  to  enquiry. 

TILGHMAN  C.  J.  after  stating  the  facts,  and  the  manner 
in  which  he  left  the  cause  to  the  jury,  delivered  his  opinion. 

The  plaintiff's  counsel  contend,  that  the  cause  having  been 
submitted  to  the  jury  on  a  point  of  fact,  their  verdict  ought 
not  to  be  set  aside.  If  it  had  been  submitted  on  a  matter  of 
pure  fact,  yet  if  it  clearly  appeared  to  the  Court  that  the 
jury  were  mistaken,  it  would  be  their  duty  to  grant  a  new 
trial.  But  although  in  compliance  with  the  usual  practice,  I 
left  it  to  the  jury  to  decide,  whether  circumstances  material 
to  the  risk,  had  been  concealed  by  the  plaintiff,  yet  in  truth 
in  this  decision  were  involved  both  law  and  fact.  Whether 
the  circumstances  were  or  were  not  communicated  was 
matter  of  fact,  but  the  materiality  of  the  circumstances 
depended  in  part  on  considerations  of  law.  As  there  was  no 
evidence  that  the  circumstances  alluded  to  had  been  com- 
municated, there  could  be  no  reasonable  doubt  on  that  head. 
But  it  has  been  said,  that  it  was  the  business  of  the  defen- 
dant to  make  enquiry,  because  being  told  that  the  cargo 
consisted  of  articles  the  growth  of  Spanish  America^  he  was 
put  on  his  guard,  and  ought  to  have  enquired  how  they  came 
to  Newport.  Whether  this  enquiry  ought  to  have  been  made 
by  the  defendants,  appears  to  be  rather  matter  of  law,  and  I 
think  they  were  not  bound  to  make  it.  They  had  a  right  to 
presume,  unless  informed  to  the  contrary,  that  the  cargo 
was  of  such  a  nature  as  might  be  carried  from  Newport 
to  Port  Passage,  without  being  subject  to  capture,  in  con- 
sequence of  facts,  resting  in  the  private  knowledge  of  the 
plaintiff.  Of  the  British  orders  in  council  of  the  25th  of 
January  1798,  under  which  the  condemnation  took  place, 
it  may  be  fairly  presumed  that  both  parties  had  notice,  be- 
cause both  were  too  much  conversant  in  business  leading  to 
that  kind  of  knowledge,  to  be  supposed  to  remain  in  igno- 
rance of  such  an  important  state  paper,  which  had  been  so 


OF  PENNSYLVANIA.  225 

long  promulgated.  And  besides  this  general  presumption,        1814. 
there  was  proof  of  so  great  an  anxiety  in  the  plaintiff  to        KOHNE 
have  the  insurance  effected,  as  can  only  be  accounted  for  v. 

from  his  consciousness  of  the  risk  he  was  running.  Let  us  INS-  COMPANY 
see  then,  what  these  orders  in  council  were,  and  how  the,.,.     . 

^ 

case  of  the  plaintiff  was  affected  b}'  them.  They  contained 
instructions  to  the  British  cruizers,  to  seize  and  bring  in 
for  adjudication,  all  ships  laden  with  goods,  the  produce  of 
French,  Spanish^  or  Dutch  colonies,  and  going  directly  from, 
thence  to  any  port  in  Europe  not  English,  nor  the  port  of 
that  country  to  which  the  ship  belonged.  The  question 
turns  on  the  word  directly.  The  Gadsden,  savs  the  plaintiff, 
was  not  going  directly  from  Laguira  to  Port  Passage,  be- 
cause her  cargo  was  first  imported  into  Charleston.  It  must 
be  premised,  that  with  respect  to  the  insurer  and  insured, 
it  is  of  no  importance,  whether  the  British  orders  in  coun- 
cil were  conformable  to  the  law  of  nations  or  not.  Between 
these  parties,  the  object  is  an  indemnification  from  loss 
occasioned  by  capture  legal  or  illegal.  We  have  only  to  con- 
sider then,  what  construction  the  British  courts  would  put 
on  the  orders  in  council.  We  know  very  well,  what  the  con- 
struction has  been  in  cases  decided  since  the  making  of  this 
insurance.  The  British  courts  have  held,  that  the  directness 
of  the  voyage  from  the  Spanish  colony  to  the  mother  country 
is  not  broken,  but  by  a  bona  fide  importation  into  the  United 
States ;  and  there  is  no  instance  of  any  importation  having 
been  deemed  bonajide,  without  landing  the  goods.  For  this 
I  refer  to  the  cases  of  the  Lnmanuel,  2  Rob.  169.,  and  the 
William,  5  Rob.  349.  But  it  is  objected  by  the  counsel  for 
the  plaintiff,  that  although  the  law  is  now  held  so,  yet  there 
had  been  no  decision  to  that  effect  at  the  time  of  making 
this  insurance,  and  therefore  that  the  plaintiff  had  nothing 
but  the  orders  in  council  themselves  for  his  guide.  Taking 
it  so,  what  is  the  fair  meaning  of  those  orders  ?  Going 
directly,  does  not  mean  going  in  a  direct  course  ;  that  would 
be  an  absurd  construction,  for  then  nothing  would  be 
necessary  to  evade  the  order,  but  going  a  little  out  of  the 
direct  course.  The  meaning  is,  going  in  a  direct  voyage. 
The  voyage  may  be  direct  and  the  course  indirect.  Whether 
the  voyage  is  direct,  is  a  matter  of  fact  to  be  determined 
from  the  circumstances  of  the  case.  If  the  circumstances 
VOL.  VI.  2  F 


226  CASES  IN  THE  SUPREME  COURT 

1814.        warrant  the  conclusion,  that  a  voyage  from  the  colony  to  the 

~~J7 mother  country  was  the  real  intent,  the  case  falls  within  the 

v<  penalty  of  the  orders,  whatever  means  may  have  been  taken 

INS.  COMPANY  to  conceal  the  truth.  But  the  intent  is  generally  to  be  judged 

°*  of  by  actions,  for  it  is   seldom   that  the   confession  of  the 

N.  AMERICA.  ,     ,     ,     XT         ,     .  , ,      ,         ,  . 

party  is  to  be  had.  No  rule  is  more  reasonable  than  this. 

"  Where  the  goods  have  been  completely  imported  into  the 
"  United  States,  so  as  to  become  part  of  the  stock  of  the 
'*  nation,  the  voyage  from  the  Spanish  colony  is  broken,  and 
"  on  exportation  from  the  United  States,  a  new  voyage  shall 
"  be  said  to  be  commenced."  I  do  not  think  it  necessary  to 
decide,  whether  such  an  importation  can  be  made  without 
landing,  by  consent  of  the  custom  house  officers,  although 
I  am  inclined  to  the  opinion,  that  such  a  practice  was  a  de- 
parture from  the  intent  of  the  law.  There  was  proof,  that  in 
Charleston  permission  was  given  for  several  years,  to  retain 
cargoes  on  board  which  were  intended  for  exportation.  But 
this  seems  to  have  been  matter  of  favour  and  indulgence  ; 
nor  is  there  any  evidence  that  such  a  practice  prevailed 
throughout  the  United  States,  or  in  the  city  of  Philadelphia, 
where  the  policy  was  underwritten.  The  question  however 
is,  whether  the  defendants  had  any  reason  to  suppose  that 
the  goods  had  not  been  landed  in  the  United  States  for  the 
purpose  of  importation,  and  whether  the  not  landing  would 
not  expose  the  ship  to  greater  danger  of  capture  from  a 
British  cruizer,  in  case  she  was  met  by  one,  than  if  they  had 
been  landed.  Upon  these  points  I  see  no  reason  to  doubt. 
The  bare  touching  at  Charleston,  and  bonding  for  duties 
which  were  drawn  back  on  exportation,  could  never  remove 
the  suspicion,  that  the  touching  was  to  afford  a  pretence  for 
saying  that  the  direct  voyage  was  broken.  If  it  gave  just 
cause  for  suspicion,  it  increased  the  risk,  and  the  defendants 
ought  to  have  been  told  of  it.  I  do  not  see  then  how  this 
verdict  can  be  supported,  unless  by  assuming  that  in  Phila- 
delphia, where  the  insurance  was  effected,  it  was  known  to 
the  underwriters  that  importations  were  made  sometimes 
with  landing  and  sometimes  without  landing,  and  also  that 
it  was  usual  there  to  take  the  same  premium  in  both  cases. 
But  as  no  evidence  was  given  to  warrant  such  an  assump- 
tion, on  the  contrary  evidence  having  been  given  that  the 
defendants  had  not  knowingly  taken  such  a  risk,  I  am  of 


OF  PENNSYLVANIA.  227 

opinion  that  the  verdict  should  be  set  aside,  and  a  new  trial        1814. 
granted.  KOHNE 

YEATES  J.  I  have  read  the  charge  of  the  Chief  Justice  INS.  COMPANY 
to  the  jury  in    this   cause,  and   considered  attentively  the  of 

arguments  of  counsel  on  the  motion  for  the  new  trial.     !."•  AMERICA. 
entirely  assent  to  the  charge  for  the  reasons  therein  given, 
which  it  would  be  a  waste  of  time  to  repeat. 

The  British  Orders  in  Council  of  25th  of  January  1798, 
were  well  known  in  the  United  States  in  1799.  I  cannot 
bring  my  mind  to  doubt,  that  if  in  October  1799  two  risks 
were  offered  to  underwriters,  one  of  goods,  the  produce  of 
a  Spanish  colony,  coming  from  those  colonies  immediately 
to  a  port  in  the  United  States,  and  there  fairly  landed  and 
the  duties  paid,  upon  a  voyage  to  Spain, — and  the  other 
upon  the  same  goods  where  they  had  not  been  landed,  such 
underwriter  would  view  the  latter  case  as  an  increase  of 
risk,  though  no  judicial  decision  had  passed  on  the  subject. 

I  therefore  consider  the  verdict  against  law,  for  the  want 
of  disclosure  of  a  material  fact  known  to  the  insured  alone, 
and  that  a  new  trial  should  be  granted. 

BRACKENRIDGE  J.  Was  there  an  importation  in  this  case  ? 
Is  not  this  a  conclusion  of  law  from  facts  ?  The  facts  seem 
to  be  admitted  on  both  sides.  The  conclusion  of  law  was 
drawn  by  the  Court,  whose  opinion  would  seem  to  have  been, 
that  an  importation  according  to  law  had  not  taken  place. 
Whether  this  was  material  to  the  risk,  was  a  conclusion  of 
law  from  facts.  The  facts  depended  upon  orders  of  council, 
instructions  to  armed  vessels  &c.,  and  were  not  in  dispute. 
The  conclusion  of  law  in  the  opinion  of  the  Court  would 
seem  to  have  been  that  this  was  material  to  the  risk,  and  if 
so,  the  facts  from  which  the  conclusion  of  law  as  to  impor- 
tation was  to  be  drawn,  ought  to  have  been  communicated 
to  the  insurer,  and  of  that  opinion  I  am,  and  that  this  ver- 
dict therefore  is  against  law  and  the  charge  of  the  Court, 
and  that  a  new  trial  ought  to  be  granted.  When  it  comes  to 
a  new  trial,  the  facts  being  admitted,  as  in  the  argument  of 
the  case  they  would  seem  to  have  been,  but  two  questions 
will  remain  to  be  decided,  and  the  determinations  of  these 
will  be  against  the  plaintiff,  so  that  he  cannot  recover. 

Call  the  question  of  importation  in  this  case  a  question  of 


CASES  IN  THE  SUPREME  COURT 


1814.        fact,  it  must  be  subject  to  the  direction  of  the  Court  what 

KOHNE      W'N  amount  to  an  importation  in  this  case,  and  this  will  be 

v.  a  construction  of  law.  Call  it  a  question  of  fact,  whether  the 

INS.  COMPANY  concealment  in  this  case  was  that  of  a  fact  material  to  the 

nr 

N  AMEH  A  ns^'  W^'  ^e  SUDJect  lo  tne  direction  of  the  Court  whether 
material,  and  might  be  put  to  the  Court  by  the  jury  to  say, 
whether  the  matter  concealed  varied  the  risk,  as  a  question 
of  law  arising  from  the  facts.  Putting  myself  in  a  situation 
at  the  trial  as  bound  to  answer  these  questions,  I  would 
have  told  the  jury,  that  there  had  not  been  an  importation 
for  the  purpose  of  legal  exportation,  so  as  to  break  the  con- 
tinuity of  the  voyage,  and  render  its  parts  distinct ;  and  that 
this  materially  affected  the  risk,  and  ought  to  have  been  com- 
municated, which  not  having  been  done,  it  was  a  suppressio 
t  vert,  and  in  contemplation  of  law  a  fraud,  and  vacated  the 
policy  ab  initio,  so  that  no  recovery  could  be  had  in  the 
case. 

I  concur  as  to  its  being  the  duty  of  the  insured,  to  have 
communicated  the  facts  as  to  the  importation,  and  that  it 
did  not  lie  with  the  insurer  to  enquire,  notwithstanding  there 
might  have  been  something  from  the  nature  of  the  cargo  to 
put  him  upon  enquiring. 

The  voyage  in  this  case  was  a  direct  voyage,  a  bona  Jide 
importation  not  having  taken  place.  I  lay  any  indulgence  or 
custom  of  collections  in  ports  out  of  the  case.  The  law  can 
know  nothing  of  this,  as  to  the  question  of  a  bona  fide  im- 
portation. 

New  trial  granted. 


MEYER  and  another  against  BARKER, 


Fldladelphia, 
Monday, 
January  17. 

If  an  original    rr^HIS  was  an  action  of  covenant  upon  a  charter  party, 

deed,  on  which  ,  ,  '  '        J ' 

suit  is  brought,       -•-  which  was  tried  before  Brackenridge  J.  at  Nisi  Priiis, 

is  traced  from  the 

hands  of  the  plaintiff  to  his  attorney,  who  believes  it  to  IIRVC  been  lost  while  in  his  keeping,  a  copy 

may  be  given  in  evidence,  without  affidavit  by  the  plaintiff  that  he  has  not  got  the  original 

A  charter  party  was  entered  into  by  St  acting  on  behnlt'of  the  owners  of  the  ship,  almost  all  the 
covenants  in  which  were  expressed  to  be  made  by  him  as  agent  for  the  owners  ;  but  the  owners 
•were  not  parties,  nor  were  they  named 'in  any  part  of  the  instrument.  At  the  conclusion  the  char- 
ter party  said,  "  for  the  performance  of  all  the  covenants  before  mentioned,  the  said  parties  respec- 
"  lively  bind  themselves  personally  each  to  the  other."  The  vessel,  her  tackle  and  apparel,  were 
bound  for  the  due  performance  of  her  owners  and  agents  or  agent  to  tlie  charterer,  and  her  freight 
vasmade  payable  to  the  agent  or  his  order.  Held,  that  the  agent  was  personally  responsible  for  his 
covenants. 

In  an  action  upon  a  charter  party,  the  charterer  may  recover  not  only  the  damage  he  himself 
sustained,  but  also  the  damage  occasioned  to  goods  belonging  to  a  person  whom  the  charterer  let  in. 

The 


OF  PENNSYLVANIA.  229 

in  November  last,  when  several  points  were  reserved  for  the        1814. 
consideration  of  this  Court.     The  case  by  the  report  of  his      MEYER 
honour  was  thus  :  et  al. 

v. 

On  the  7th  of  September  1805,  Jacob  Barker  the  defen-     BAHKEtt- 
dant,  and  George  and  Theodore  Meyer,  entered  into  a  charter    The  hold  of  a 
party  of  the  American  ship  Diana,  Samuel  Holmes,  master.  l^^to  ^L^ji 
Barker  described  himself  in  the  charter  party  as  "  agent  for  af>|i-wards  put 

'  <  coftee  in  the 

"and  in  behalf  of  the  owners     of  the  ship,  and  "as  agent  cabin,  about 
"  aforesaid",  for  the  considerations  therein  mentioned,  "  he^.0I,ce)  w|,en  c,C 

"  granted  and  to  freight  let  unto  the  said  G.  and  T.  Metier,  wh.°  was  interest- 

y        ed  in  the  charter 
"  the  hold  of  said  ship,  reserving  usual  and  sufficient  room  with  ji,  purchas- 

,i  r  r        LI  •    •  j  i  ed  it  of  B.  :»nd 

"for  the  stowage  of  cables,  provisions,  wood  and  water,  pai(1  the  captain 
"for  a  voyage  to  be  made  from  the  port  of  New  York  f<?F  his  cahin  i'.r'- 

*    °  vilege.  One  bill  of 

44  to  Amboy  in  New  Jersey,  from  thence  to  Varel,  (and  lading  was  given 
"  Bremen  if  it  proved  to  be  free  of  blockade)  and  at  and  J^-j^i^  fhat 
"from  thence  back  to  New  Tork,  on  the  terms  and  condi-''llhe('oWar'diu 

the  cabin,   "  pay- 

"  tions  therein  after  mentioned."  Barker  as  agent  then  cove-  "  ing  freight  as 


nanted  that  the  ship  was,  and  to  the  best  endeavours  of  her  «  p 

owners  &c.  should  continue,  tight,  strong  &c.,  and  so  on  that  -Brwas  b°UQ(1 

-  to  pay  for  the 

through  the  ordinary   covenants  on  the   part  of  the  ship  coffee  in  the 
owner.     On  their  part,   G.  and  T.  Meyer  covenanted  with  sceaq 


Barker  as  arent,  to  use  the  hold  of  the  ship,  subject  to  the  unseaworthiness 

.  r  .,  -i  of  the  ship. 

reservation  aforesaid,  to  tender  and  receive  the  cargo,  and    A  charterer 


to  «  pay  to  the  said  Jacob  Barker  or  his  order  for  the  same,  SK^ 

44  150O/.  sterling,  with  five  per  cent,  primage."  payable  atth.e.wholeamount 

•     i       •  tn.  i.  i    i    i  i  i      i    of  the  Ioss  catlsctl 

particular  times.  The  charter  thus  concluded,   "and  lastly  by  uuseawortiii- 

"for  the  true  and  faithful  performance    of  all   and    sin-  "SSgumfeV- 
*'  gular  the  agreements  and  covenants  herein  before  con-  writers  have  ai- 
**  tained,  on  the  part  of  said  forties  respectively,  they  ^in^/dbputTpaid  put 
"themselves  personally  each  to  the  other,  and  their  heirs,  oltht'?ss;  that 

f        .    .       y  .  '  part  betng  reco- 

44  executors,  administrators    and    assigns  each  to  the  other,  verabie  b^ck  by 

,,        j     i  •  j  LU  iiLjri      ihe  underwriters, 

44  and  the  said  cargoes  are  hereby  severally  bound,  for  theagapayment  b). 
44  payment  of  the  freight,  primage  and  demurrage  to  the  said  mistake« 
44  ship  and  owners  and  their  agent  or  agents  ;  and  the  said 
44  vessel,  her  tackle  and  apparel  are  hereby  bound  for  the 
44  due  performance  of  her  owners,  and  agent  or  agents,  to  the 
44  said  G.  and  T.  Meyer."  It  was  signed  and  sealed  first  by 
Jacob  Barker,  without  any  addition,  and  then   by  George 
Meyer,  and  Theodore  Meyer  by  his  attorney  George  Meyer. 
While  the  cargo  was  loading  at  Nerv  Tork,  the  defendant 


230 


1814. 


MEYER 
etal. 

v. 
BARKER. 


CASES  IN  THE  SUPREME  COURT 

put  coffee  of  his  own  in  the  cabin,  and  a  dispute  arose  whe- 
ther only  the  hold,  or  the  -whole  ship  was  chartered;  in  con- 
sequence of  this,  Jacob  Le  Roy  and  Sons,  who  were  owners 
of  an  undivided  moiety  of  the  cargo,  purchased  for  the  con- 
cern the  coffee  of  the  defendant,  and  paid  the  captain  for 
one  half  of  the  cabin  which  was  his  privilege ;  and  a  bill  of 
lading  was  signed  for  the  whole  cargo,  including  the  coffee 
in  the  cabin,  paying  freight  as  '•'•per  charter  party." 

The  vessel  sailed  from  New  York  upon  the  voyage,  and 
in  consequence  of  springing  a  leak,  she  made  a  jettison  of 
402  bags  of  coffee,  including  that  in  the  cabin,  damaged  her 
cargo,  and  was  obliged  in  consequence  of  distress  to  put 
into  the  Delaware,  and  to  come  up  to  Philadelphia. 

Messrs.  Le  Roy  and  Sons,  who  were  insured  in  Baltimore-, 
received  the  loss  there  without  any  dispute.  They  were  also 
insured  in  Philadelphia  ;  but  in  a  suit  against  the  Union  Insu- 
rance Company,  they  were  defeated  on  the  ground  of  unsea- 
worthiness. This  suit  was  therefore  brought  against  Mr. 
Barker  upon  the  same  ground.  The  declaration  alleged  the 
damage  by  breach  of  covenant  to  have  accrued  to  G.  and  T. 
Meyer;  but  subsequent  to  the  institution  of  the  suit,  it  was  en- 
tered on  the  record  to  be  also  for  the  use  of  Le  Roy  and  Sons. 

Upon  the  trial  of  the  cause,  the  first  question  was  whether 
a  copy  of  the  charter  party  could  be  given  in  evidence.  It 
was  proved  that  the  original  had  been  sent  with  other  papers 
from  New  York,  by  George  Meyer,  to  the  agent  of  the  con- 
cern in  Philadelphia,  Mr.  George  Harrison.  Mr.  Harrison 
delivered  the  papers  as  he  received  them  to  Mr.  Ingersoll 
to  bring  suit  upon,  and  Mr.  Ingersoll  swore  that  he  received 
the  charter  from  Mr.  Harrison  on  the  26th  of  March  1807, 
and  afterwards  delivered  it  to  one  of  his  students,  to  draw 
the  declaration,  which  was  drawn  and  filed  on  the  17th  of 
August  1 809 ;  that  diligent  search  had  been  made  for  the 
charter  party  in  his  office,  and  from  its  not  being  among-  his 
papers,  he  believed  that  the  same  had  been  lost  upon  the 
removal  of  his  papers  on  a  change  of  residence.  After  the 
loss  was  discovered,  a  second  declaration  was  filed  without 
profert.  It  was  also  proved  that  both  the  subscribing  wit- 
nesses were  dead,  and  that  notice  had  been  given  to  the 
defendant  to  produce  the  counterpart.  On  this  evidence,  an 
examined  copy,  made  by  the  defendant  himself,  and  exhibit- 


OF  PENNSYLVANIA. 


231 


ed  upon  a  trial  in  another  cause,  was  offered,  and  admitted 
by  the  judge,  reserving  the  point. 

The  fact  of  the  loss  and  damage,  and  of  the  entire  unsea- 
worthiness of  the  vessel,  was  then  shewn,  and  the  cause  was 
spoken  to,  the  defendant's  counsel  making  the  following  ob- 
jections to  the  plaintiffs'  claim,  in  addition  to  their  observa- 
tions upon  the  question  of  unseaworthiness  :  First,  that  the 
defendant  was  not  responsible,  having  acted  in  the  capacity 
of  agent.  Secondly,  that  the  plaintiffs  could  only  recover 
their  own  loss,  and  that  the  loss  of  Messrs.  Le  Roy  and 
Sons  could  not  be  included.  Thirdly,  that  no  damages  could 
be  recovered  for  the  coffee  in  the  cabin,  the  charter  party 
only  embracing  the  hold.  Fourthly,  that  from  the  entire 
loss,  should  be  deducted  the  amount  received  by  Le  Roy 
and  Sons  from  the  underwriters  at  Baltimore.  All  these 
points  the  judge  reserved,  giving  his  own  opinion  at  the 
same  time  against  the  defendant  upon  all,  and  the  jury  found 
a  verdict  accordingly. 

The  reserved  points  were  now  argued  by  Dallas  and 
Ingersoll  for  the  plaintiffs,  and  by  Todd  and  Ra-wle  for  the 
defendant. 

Arguments  for  the  plaintiffs.  1.  The  copy  was  good  evi- 
dence, because  the  loss  of  the  original  was  proved  as  clearly 
as  it  could  be.  There  was  no  necessity  for  examining  the 
plaintiffs  or  Le  Roy  and  Sons,  because  the  paper  had  been 
traced  out  of  their  hands,  and  their  was  no  ground  for  sup- 
posing it  had  ever  got  back. 

2.  The  defendant  was  personally  responsible.  The  respon- 
sibility of  agents  depends  very  much  upon  the  intention  of 
the  parties,  to  be  collected  from  the  language  used,  and  from 
the  circumstances  attending  the  transaction.  Barker  is  the 
party  ;  his  principles  are  not  named,  nor  are  they  bound ;  the 
freight  is  reserved  to  him  or  his  order  ;  he  binds  himself  in 
express  terms  personally,  and  he  seals  in  the  character  of  a 
principal.  There  was  good  reason  for  requiring  his  per- 
sonal liability,  because  the  owners  lived  out  of  the  state  :  if 
he  had  intended  to  bind  his  principles  only,  he  would  have 
named  them,  signed  for  them,  and  given  his  plaintiffs  a  re- 
course to  them.  For  want  of  this  he  is  personally  liable. 


1814. 


MEYER 
etal. 

v. 
BARKER. 


232 


CASES  IN  THE  SUPREME  COURT 


1814. 


MEYER 
etal. 

v. 
BARKER. 


This  is  not  like  the  case  of  Hodgson  v.  Dexter  (c),  nor 
'  Unwin  v.  Wolseley  (£)  ;  because  there  the  obvious  intention 
was  to  look  to  government,  and  not  to  the  agent. 

3.  The  damage  sustained  by  Le  Roy  and  Sons  may  be 
recovered  in  this  suit.  They  were  interested  from  the  first. 
No  second  suit  can  be  brought  upon  this  charter  party,  and 
yet  clearly  the  defendant  should  make  good  the  whole  loss. 
It  can  only  be  done  by  permitting  an  entire  recovery  in  this. 
Le  Roy  and  Sons  were  known  to  the  defendants  as  parties 
in  interest  from  the  outset.     They  bought  the  cabin  coffee, 
and  paid  the  captain  ;  and  the  bill  of  lading  which  included 
the  coffee,  stipulated  for  freight  as  per  charter  party.     This 
recognized  and  included  their  interest. 

4.  The  coffee  thrown  overboard  from  the  cabin  is  upon 
the  same  footing  with  other  parts  of  the  cargo.     It  was  in- 
cluded in  the  same  bill  of  lading,  which  referred  to  the 
charter  party.    After  the  dispute    arose,  the  defendant  by 
selling  the  coffee  to  Le  Roy  and  Sons,  agreed  to  their  inter- 
pretation, that  the  hold  meant  the  entire  ship.   The  bill  cf 
lading  is  evidence  of  the  particular  goods  to  be  conveyed 
according  to  charter  party,  and  included  within  it.  Abbot  on 
Ship.  172. 

5.  The  ship  not  being  seaworthy,  the  underwriters  who 
have  paid  a  loss,  may  recover  it  back,  as  a  payment  by  mis- 
take.    If  it  is  deducted  in  this  suit,  and  the  underwriters 
then  recover  it,  no  further  remedy  can  be  had  upon  the 
charter   party.     If   the  defendant  wishes  to   take  defence 
against  those  underwriters  upon  the  question  of  seaworthi- 
ness, we  agree  that  he  may  do  it  in  our  name  j  or  we  will 
deduct  the  amount  so  paid,  from  our  claim  in  this  suit,  on 
receiving  an  indemnity  against  the  underwriters. 

For  the  defendant. 

1.  It  was  not  quite  clear  that  the  paper  sent  to  Mr.  Harri- 
son was  an  original ;  but  before  a  copy  could  be  evidence,  it 
was  necessary  to  examine  the  plaintiffs,  who  had  the  legal 
right  to  possess  the  original,  or  to  produce  their  affidavit. 
There  was  nothing  to  shew  that 'it  might  not  have  been 
delivered  back  to  them. 

2.  Barker  is  not  bound  personally,  because  he  is  bound 

(a)  1  D.  &f  E.  674.  (b}  1  Crnn.  3i5. 


OF  PENNSYLVANIA. 


233 


throughout  as  agent,  and  the  plaintiffs  treated  with  him  as 
agent.  Joyce  v.  Sims  (a).  It  is  this  circumstance  that" 
exempts  him.  Signing  and  sealing,  personally  binding,  are 
of  no  importance  ;  these  existed  in  Hodgson  v.  Dexter  (£). 
The  term  personally  was  used  only  to  guard  against  an 
abandonment  of  the  goods  for  the  freight.  If  it  appears  that 
the  party  covenanted  in  a  representative  capacity  for  his 
principles,  he  is  exempt.  That  the  owners  were  not  dis- 
tinctly named  is  immaterial,  as  their  names  might  have  been 
ascertained  at  the  custom  house  ;  and  the  bill  of  lading  un- 
questionably bound  them,  if  the  want  of  an  authority  under 
seal,  prevented  the  charter  under  seal  from  obliging  them. 
As  to  the  reservation  of  freight  to  Barker,  payment  to  the 
owners  would  have  barred  him,  and  they  might  have  main- 
tained suit  upon  the  charter.  2  Roll.  Abr.  22.  /.  20.,  2  Lev.  74,. 

3.  The  recovery  must  be  according  to  the  count,  which 
is  for  damage  to  the  plaintiffs  only.  At  the  commencement 
of  the  suit,  the  names  of  Le  Roy  and  Sons  were  not  entered 
in  the  process,  or  on  the  record.     The  defendant  is  in  the 
nature  of  a  surety,  against  whom  a  remedy  should  not  be 
extended  by  implication.  Wright  v.  Russel  (c),  Strange  v. 
Lee  (</),  Dance  v.  Girdler  (e),  St.  Saviours  v.  Bostock  (^). 
The  contract  binds  the  ship  to  G.  and  T.  Meyer. 

4.  The  cabin  was  not  included  in  the  charter.  Even  after 
the  dispute  the  captain  was  paid  20O  dollars  for  the  cabin, 
which  proves  that  the  charter  did  not  extend  to  it.     If  the 
plaintiffs  have  a  remedy,  it  is  upon  the  bill  of  lading  against 
the  owners.     Barker  has  not  undertaken  for  it. 

5.  It  would  be  against  good  faith  that  the  plaintiffs  should 
recover  from  us,  what  they  had  already  received  from  the 
underwriters.     We  aver  that  the  vessel  was  seaworthy ;  and 
if  this   verdict   stands,  we   shall  have  no   opportunity  of 
making  good  our  averment  against  the  underwriters  who 
have  once  admitted  it.  The  damage  of  the  plaintiffs  is  only 
what  remains  due  of  the  loss,  after  crediting  their  receipts. 

TILGHMAN  C.  J.  This  is  an  action  of  covenant  on  a  char- 
ter party,  by  which  the  defendant,  as  agent  of  the  owners  of 
the  ship  Diana,  let  the  hold  of  the  said  ship  on  freight  to  the 


1814. 


MEYER 

et  al. 

v. 

BARKER 


(a)  2  DalL  224, 
(6)  1  Cran.  364. 

VOL.  VI. 


(c)  3  mis.  532. 

(d)  3  East.  484. 

2  G 


(e)  4  Bos.  W  Pul.  40. 
(/)  SUoa.  &  Pul.  179. 


234 


CASES  IN  THE  SUPREME  COURT 


1814. 


MEYEU 
et  al. 

v. 
BARKER. 


plaintiffs  on  a  voyage  from  New  York  to  Amboy  in  the  state 

"  of  New  Jersey,  thence  to  Varel  and  Bremen  in  Europe,  and 

thence  back  to  New  York.    On  the  trial  at  Nisi  Prius  several 

points  of  law  were  reserved,  which  are  now  to  be  decided. 

1.  The  first  question  is  whether  a  copy  of  the  charter 
party  was  properly  admitted  as  evidence.     There  was  no 
doubt  of  the  copy  being  well  proved,  for  it  was  sworn  to  by 
one  who  had  compared  it  with  the  original,  the  subscribing 
•witnesses  being  dead.     The  only  point  then  is,  whether  this 
was  a  case  in  which  a  copy  could  be  admitted  at  all.     The 
rule  is,  that  before  a  copy  can  be  received,  you  must  prove 
the  existence  and  loss  or  destruction  of  the  original.     About 
the  existence  of  the    original   there  was   no   dispute.     Its 
destruction  was  not  alleged.     But  as  to  its   loss  there  was 
strong  evidence.     It  was  proved  that  the  original  had  been 
sent  from  Nezv  York  by  Le  Rcy  and  Sons  to  their  agent  Mr. 
George  Harrison  of  Philadelphia.    Mr.  Harrison  delivered 
it  to  Mr.  Ingersoll  to  bring  suit  on,  and  Mr.  Ingersoll  be- 
lieves that  it  was  lost  at  the  time  of  his  removing  his  papers 
from  one  house  to  another  in  this  city.    When  the  declaration 
was  first  filed  in  this  cause,  it  contained  a  profert  of  the 
charter  party ;  but  after  the  loss  was  discovered,  a  new  decla- 
ration was  filed  in  which  the  loss  is  alleged.    The  principal 
objection  to  the   evidence,  is  that  the  oath  of  the  plaintiffs 
was  not  taken  to  prove  that  the  original  was  not  in  their 
possession  ;  but  I  take  this  to  be  unnecessary,  because  the 
paper  was  traced  from  their  hands  to   the  hands  of  Mr. 
Ingersoll.    The  evidence  of  loss  after  it  came  to  Mr.  Ingcr- 
soll's  hands  is  satisfactory,  so  that  the  plaintiffs  were  let  in 
to  the  production  of  the  copy. 

2.  The  second  point  is  on  the  articles  of  charter  party,  the 
defendant  contending  that  he  is  not  liable  to  an  action,  be- 
cause he  contracted  only  in  the  capacity  of  an  agent.  Where 
one  contracts  as  an  agent,  and  it  is  understood  that  the  prin- 
cipal only  is  to  be  looked  to,  the  agent  is  not  liable  to  an 
action.     This  has  been  decided  in  the  case  of  agents  con- 
tracting on  behalf  of  the  British  government,  and  that  of 
the  United  States.  1  Term  Reports  674.  Hodgson  v.  Dexter. 
1  Crunch  345.  The  reason  is  plain.  To  make  the  agent  liable 
against  the  intent  of  the  parties,  would  be  a  violation  of  the 
contract.     It  is  to  be  examined  then,  what  was  the  intent 


OF  PENNSYLVANIA. 


235 


of  the  parties  to  be  collected  from  this  charter  party.  Most 
of  the  covenants  on  the  part  of  the  defendant,  are  expressed 
to  be  made  by  him  as  agent  for  the  owners  of  the  ship.  But 
towards  the  conclusion,  for  the  performance  of  all  the  cove- 
nants before  mentioned,  the  parlies  bind  themselves  to  each 
other  respectively,  and  the  vessel  her  tackle  and  apparel  are 
bound  for  the  due  performance  of  her  owners  and  agents  or 
agent  to  the  said  G.  and  T.  Meyer.  Who  are  these  parties 
then  that  thus  bind  themselves  ?  The  owners  of  the  ship 
are  no  where  named  as  parties,  nor  are  they  even  named  at 
ail  in  any  part  of  the  instrument ;  nor  does  the  defendant  sign 
as  agent  or  attorney,  but  in  his  own  name.  It  appears  too, 
that  this  difference  between  signing  in  one's  own  name  and  as 
attorney  was  well  understood,  because  George  Meyer  signs 
first  for  himself,  and  then  as  attorney  for  T.  Meyer.  It  is 
no  uncommon  thing  for  an  agent  to  bind  himself  personally, 
looking  to  his  principal  for  indemnity  ;  and  indeed  when  the 
principal  lives  at  a  distance,  as  in  the  present  case,  it  is  no 
more  than  a  just  caution  in  the  other  party  to  ask  security 
at  home.  Considering  the  whole  of  this  instrument,  I  think 
it  was  intended  that  the  defendant  was  to  be  looked  to,  and 
therefore  he  is  responsible. 

3.  The  next  question  is  whether  damages  can  be  recovered 
in  this  action,  on  account  of  the  loss  sustained  by  Jacob  Le 
Roy  and  Sons,  who  were  owners  of  the  cargo  ?  That  the  de- 
fendant ought  to  be  answerable  in  some  form  of  action,  for 
all  damages  sustained  by  the  cargo,  is  without  doubt ;  and  I 
can  see  no  objection  to  the  recovery  of  the  whole  in  this 
action.  The  defendant  will  not  be  liable  to  Le  Roy  and  Sons 
in  another  action,  because  it  is  entered  on  the  record,  that 
this  action  is  for  their  use.  It  was  intended  that  there  should 
be  a  remedy  for  all  damages  by  action  on  the  charter  party; 
but  that  cannot  be,  unless  the  whole  is  now  recovered,  be- 
cause there  cannot  be  two  actions  on  it.     The  plaintiffs  are 
trustees,  for  the  purpose  of  permitting  their  names  to  be 
used  for  the  benefit  of  Le  Roy  and  Sons  in  this  action.    No 
injury  is  thereby  offered  to   the  defendant,  justice  is  done 
to  all  parties,  and  no  form  of  law  is  violated.    The  damage 
sustained  by  Le  Roy  and  Sons  may,  therefore,  be  taken  into 
consideration  in  the  suit. 

4.  We  are  next  to  consider,  whether  the  charter  party 


1814. 


MEYER 

etal. 

v. 

BARKER. 


236 


CASES  IN  THE  SUPREME  COURT 


1814. 


MEYER 
et  al. 

v. 
BAUKER. 


extends  to  the  goods  stowed  in  the  cabin.  The  defendant 
denies  that  it  relates  to  any  thing  out  of  the  hold.  The 
objection  deserves  no  favour.  It  savours  too  much  of  the 
summumjus.  It  was  from  the  defendant  himself,  that  these 
goods  were  purchased  after  they  were  in  the  cabin.  Could 
it  have  been  intended  then  that  they  should  be  unprotected 
by  the  charter  party  ?  It  seems  there  had  been  some  differ- 
ence of  opinion  about  the  meaning  of  the  word  hold,  used 
in  the  charter  party.  Pending  this  difference,  the  defendant 
put  his  goods  in  the  cabin,  but  finally  the  matter  was  ad- 
justed by  the  defendant  selling  the  goods.  I  am  for  taking 
the  construction  put  upon  the  instrument  by  the  parties 
themselves,  and  it  seems  they  construed  it  so  as  to  include 
the  goods  put  in  every  part  of  the  ship  ;  this  is  very  clear, 
because  no  extra  freight  was  demanded  for  what  was  put  in 
the  cabin,  and  the  bill  of  lading  expresses  that  freight  is  to 
be  paid  according  to  the  charter  party.  The  whole  therefore 
is  to  be  included  in  the  charter  party. 

5.  The  fifth  and  last  objection  is,  to  the  recovery  of 
damages  to  the  amount  of  the  whole  injury  sustained,  be- 
cause the  plaintiffs  had  recovered  satisfaction  for  part  from, 
the  underwriters  in  Baltimore.  We  must  now  take  for  grant- 
ed, that  the  jury  have  decided  that  the  ship  was  not  sea- 
worthy, and  therefore  the  money  paid  by  the  Baltimore 
underwriters,  may  be  recovered  back  as  having  been  paid 
by  mistake.  Supposing  the  unseaworthiness  to  be  granted, 
it  would  follow  that  restitution  must  be  made,  and  therefore 
there  should  be  no  deduction  from  the  full  damages  in  this 
case,  because  what  one  is  bound  both  by  conscience  and  laiv 
to  do,  may  be  considered  as  done.  But  the  defendant  denies 
the  want  of  seaworthiness,  and  therefore  he  has  a  right  to  a 
trial ;  he  has  a  right  to  it,  because  the  plaintiffs  being  in  pos- 
session, may  retain  the  money  until  recovered  from  them  by- 
law, and  the  defendant  having  given  notice  that  in  his  opi- 
nion the  ship  was  seaworthy,  and  that  he  desires  that  question 
to  be  decided  by  an  action,  it  would  be  unjust  that  he  upon 
whom  the  loss  is  to  fall,  should  be  refused  a  trial.  If  there- 
fore the  entry  of  judgment  in  this  verdict,  would  have  the 
effect  of  debarring  the  defendant  of  so  reasonable  a  claim, 
I  should  be  for  setting  it  aside.  But  this  is  not  the  case.  The 
plaintiffs  offer  to  release  the  amount  of  what  was  paid  bv 


OF  PENNSYLVANIA. 

the  underwriters,  upon  receiving  an  indemnification  from 
the  defendant ;  or  they  offer,  if  the  defendant  pays  them  the" 
whole  amount  of  the  verdict,  to  repay  him  the  amount  re- 
ceived from  the  underwriters,  if  the  underwriters  fail  in 
their  suit  for  restitution.  The  defendant  may  secure  him- 
self by  taking  his  choice  of  this  alternative.  I  am  therefore 
of  opinion  that  this  being  done,  judgment  should  be  entered 
for  the  plaintiffs. 

YEATES  J.  The  settled  rule  of  law  is,  that  previous  to  a 
party's  being  permitted  to  give  secondary  evidence  of  the 
contents  of  a  written  instrument,  he  must  give  satisfactory 
proof  to  the  judge  that  such  instrument  once  existed  and  is 
destroyed  or  lost.  No  effort  should  be  remitted,  which  may 
induce  a  reasonable  presumption  that  upon  further  enquiry 
the  original  might  be  obtained. 

In  the  present  instance,  the  existence  of  the  charter  party 
on  which  this  suit  is  brought,  is  fully  established  by  the 
affirmation  of  the  defendant  himself,  taken  under  a  commis- 
sion in  another  cause  between  other  parties,  wherein  the 
seaworthiness  of  the  ship  Diana,  during  the  voyage  for 
which  she  had  been  chartered,  came  in  question.  George 
Meyer ,  one  of  the  plaintiffs,  declared  on  oath  in  open  court, 
that  he  had  forwarded  from  New  York  to  Mr.  George  Har- 
rison,  his  agent  here,  the  original  charter  party  which  had 
been  executed  by  the  defendant,  together  with  other  papers 
in  this  action  ;  and  Mr.  Harrison  swore,  that  he  delivered 
the  identical  papers  to  Jared  Ingersoll  esquire,  one  of  the 
plaintiffs'  counsel,  having  first  taken  a  list  of  them  in  the 
envelope  which  is  still  preserved,  wherein  the  charter  paper  is 
marked  No.  2.  Mr.  Ingersoll  swore  that  he  received  those 
papers  from  Mr.  Harrison  on  the  26th  of  March  1807,  and 
afterwards  delivered  the  charter  party  to  Mr.  Samuel  Badger ^ 
a  young  gentleman  who  studied  the  law  in  his  office,  in  order 
to  draw  a  declaration  thereupon,  which  was  afterwards  filed 
on  the  17th  of  August  1809  ;  that  the  most  diligent  search 
had  been  made  for  the  charter  party  in  his  office,  and  from 
its  not  being  found  amongst  his  papers,  he  concluded  that 
the  same  had  been  lost  in  the  removal  from  his  former  resi- 
dence in  the  city  on  the  17th  of  March  1812.  Mr.  Badger 
confirmed  this  statement,  and  swore  that  the  declaration  was 


237 


1814. 


MEYER 

et  al. 

v. 
BARKER. 


238 


CASES  IN  THE  SUPREME  COURT 


1814. 


MET  EII 
et  al. 

v. 
BARKER. 


in  his  hand  writing,  which  he  had  drawn  from  the  original 
~  charter  party.  Added  to  this,  proof  was  given  that  both  the 
subscribing  witnesses  to  the  charter  party  were  dead  at  the 
time  of  the  trial.  Under  these  circumstances,  I  think  it  per- 
fectly correct  to  admit  the  proof  of  the  contents  to  be  given 
in  evidence,  which  was  a  copy  of  the  instrument  testified  by 
the  defendant  himself  to  have  been  compared  with  the 
original  to  serve  as  evidence  in  another  cause. 

It  would  seem  to  me  to  be  a  work  of  supererogation  to 
have     examined    Theodore    Meyer,  the  other    plaintiff,  or 
Jacob  Le  Roy  and  Sons,  to  the  loss  of  the  original  charter 
party.    So  far  from  there  being  the  slightest  probability,  that 
this  paper  had  come  to  the  hands  of  either  of  those  persons, 
the  proof  adduced  expressly  destroys  such  presumption ; 
because  the  paper  has  been  traced  by  ample  proof  into  the 
hands  of  Mr.  Ingersoll,  and  it  is  not  pretended  or  suggested 
that  he  delivered  it  over  to  his  clients.     If  however  the  de- 
fendant had  deemed  it  beneficial  to    his  interest  to  have 
examined  either  of  those  gentlemen,  as  to    the  loss  of  the 
original  charter  party,  he  had  it  in  his  power  so  to  do ;  be- 
cause the  second  declaration  averring  the  loss  thereof,  was 
actually  filed  nearly  five  months  before  the  trial  took  place. 
It   has  been  strenuously   contended  by  the  defendant's 
counsel,  that  this  charter  party  does  not  charge  the  defen- 
dant with  individual  responsibility.  On  this  part  of  the  case 
I  feel  no  difficulty  whatsoever.     I  fully  agree  that  the  lia- 
bility of  the  defendant  is  to  be  collected  from  a  fair  con- 
struction of  the  whole  instrument,  and  that  the  intention  of 
the  contracting  parties  must  govern  our  decision.     I  also 
admit  that  he  did  not  let  the  ship  to  freight  as  owner;  but 
it  will  not  be  denied,  that  although  he  acted  for  others  in 
this  instance,  he  might  bind  himself  individually.    My  j  udg- 
ment  is  not  formed  on  the  technical  operation  of  the  defen- 
dant's seal ;  though  it  cannot  escape  observation,  that  George 
Meyer  has  sealed  the  paper  as  well  for  himself  as  attorney 
for  Theodore  Meyer,  and  the  defendant  immediately  after- 
wards subscribed  the  same  without  adding  his  representa- 
tive character.     This  case  is  distinguishable  from  Hodgson 
v.  Dexter  in  several  important  particulars.  There  the  official 
character  of  the  defendant  was  stated  in  the  description  of 
the  parties.  The  tenement  was  let  to  the  said  Samuel  Dexter 


OF  PENNSYLVANIA. 


239 


and  his  successors,  to  have  and  to  hold  the  same  to  him  and 
his  successors.  The  covenant  for  quiet  enjoyment  during 
the  term  is  with  the  said  Samuel  Dexter  and  his  successors, 
and  is  that  they  as  well  as  he  shall  enjoy  ;  and  the  covenant 
on  which  the  suit  was  brought  was  for  himself  and  his  suc- 
cessors. The  Court  there  say,  that  under  such  circumstances, 
the  intent  of  the  officer  to  bind  himself  personally  must  be 
very  apparent  indeed,  to  induce  such  a  construction  of  the 
contract.  In  our  case  it  is  true  that  the  defendant  is  styled 
agent  for  and  in  behalf  of  the  American  ship  Diana, 
Samuel  Holmes,  of  l¥iscasset,  and  the  covenants  made  by 
him  are  said  to  be  as  agent ;  but  the  freight  of  1500/.  ster- 
ling and  demurrage  are  made  payable  to  the  defendant  or 
his  order,  and  in  no  part  of  the  charter  party  are  the  names 
of  the  owners  introduced.  The  last  covenant  is  in  these 
words  :  "  For  the  true  and  faithful  performance  of  all  and 
44  singular  the  agreements  and  covenants  herein  before  con- 
"  tained  on  the  part  of  said  parties  respectively,  they  bind 
"themselves  personally  each  to  the  other,  and  their  heirs, 
"  executors,  administrators  and  assigns  each  to  the  other 
"  Sec."  That  the  plaintiffs  were  bound  jointly  and  severally 
to  the  defendant,  there  cannot  be  the  shadow  of  a  doubt. 
What  then  is  the  effect  of  this  clause  as  to  the  defendant  ? 
We  are  not  at  liberty  to  reject  any  expression  which  the 
contracting  parties  have  made  use  of.  Is  it  not  the  plain  and 
obvious  meaning  of  the  words  cited,  that  the  defendant 
bound  himself  in  his  individual  capacity,  stripped  and  sepa- 
rated from  his  representative  character?  And  will  not  a  dif- 
ferent construction  render  the  adverb  personally,  as  applied 
to  the  defendant,  wholly  inoperative  ?  To  my  mind  the  con- 
viction is  irresistible,  that  the  defendant  became  personally 
responsible  for  all  breaches  of  the  charter  party  committed 
or  suffered  by  himself,  the  owners  of  the  ship,  or  their  cap- 
tain. We  may  naturally  suppose  that  in  such  a  case  the 
plaintiffs  would  prefer  a  remedy  against  a  person  living  in 
the  same  city  with  themselves,  to  a  resort  for  redress  to  the 
judicial  tribunals  of  the  province  of  Maine;  and  it  is  no  an- 
swer to  the  9bservations  I  have  made,  to  say  that  the  law 
would  afford  a  remedy  to  them  against  the  owners  of  the 
vessel  upon  the  captain's  bill  of  lading. 

It  has  been  further  objected,  that  the  plaintiffs  are  entitled 


1814. 


METER. 
et  al. 

v. 
BARKER. 


CASES  IN  THE  SUPREME  COURT 


1814. 


MEYER 

et  al. 

v. 

BARKER. 


to  recover  only  such  damages  as  they  themselves  have  re* 
ceived,  the  contract  having  been  made  with  them  alone,  and 
LeRoy  and  Sons  not  being  mentioned  therein  ;  and  that  at  all 
events  the  defendant  was  not  answerable  for  the  coffee 
stowed  in  the  cabin,  which  was  afterwards  thrown  into  the 
sea.  The  time  when  Le  Roy  and  Sons  embarked  in  this  con- 
cern, does  not  appear  precisely  from  the  evidence  ;  but  most 
probably  it  was  from  an  early  period  of  the  meditated 
voyage.  They  purchased  from  the  defendant  the  coffee 
which  he  had  procured  to  be  stowed  in  the  cabin,  and  paid 
the  captain  20O  dollars  for  his  privilege  therein.  They  ap- 
pear to  have  been  jointly  interested  with  the  plaintiffs  in  the 
whole  shipment,  and  the  bill  of  lading  signed  by  captain 
Holmes,  treats  all  the  cargo  as  a  joint  concern,  and  the 
freight  thereof  to  be  paid  as  per  charter  party.  We  cannot 
suppose  with  any  degree  of  plausibility  that  mere  strangers 
could  have  any  claim  to  interpose  in  the  projected  voyage 
to  Varel  and  Bremen  ;  but  must  presume  that  the  whole  of 
the  expected  profits  should  be  confined  exclusively  to  the 
plaintiffs  and  those  coming  in  under  them.  The  defendant's 
sale  of  his  coffee  to  Le  Roy  and  Sons,  and  the  general  bill  of 
lading  of  the  captain  referring  to  the  charter  party,  adopt 
them  as  principles  in  the  first  contract,  which  cannot  now 
be  retracted. 

The  cabin  and  hold  are  certainly  distinct  portions  of  a 
ship ;  but  a  part  may  under  some  circumstances  be  used  as 
referring  to  the  whole,  without  any  violation  of  language. 
Here  if  a  misunderstanding  prevailed  between  the  parties 
in  the  first  instance  about  the  cabin,  it  was  settled  by  an 
amicable  accommodation,  and  the  adverse  claim  of  every 
person  interested  therein  was  removed.  But  if  even  the 
original  contract  and  subsequent  agreement  should  be  deem- 
ed inoperative  to  secure  the  cabin  to  the  plaintiffs,  whose 
fault  was  it  that  the  coffee  was  permitted  to  remain  there  ? 
Unquestionably  of  the  captain,  who  in  such  a  case  should 
have  shifted  the  coffee  into  the  hold  of  the  ship.  The  plain- 
tiffs ought  not  to  sustain  a  damage  by  the  misconduct  of  an 
agent  over  whom  they  had  no  control. 

The  only  question  remaining  to  be  considered,  is  Whether 
the  verdict  is  not  given  for  too  large  a  sum  ?  In  other  words, 
whether  the  defendant  ought  not  to  have  been  allowed  credit 


OF  PENNSYLVANIA. 


241 


for  the  monies  admitted  to  have  been  paid  to  the  plaintiffs, 
by  the  underwriters  on  the  policies  effected  on  the  cargo  in 
New  Tork  and  Baltimore  ?  Serious  difficulties  attend  this 
point  on  either  side,  and  it  is  evident  that  injustice  will  be 
done,  unless  the  court  interpose  their    summary    powers. 
The  recovery  here  is  founded  on  the  defendant's  warranty 
of  the  seaworthiness  of  the  ship,  which  the  verdict  of  the 
jury  affirms  to  have  been  broken ;  but  in  such  cases  the  losses 
voluntarily  settled  by  the  underwriters,  may  be  recovered 
back  as  payments  made  by  mistake.     It  is  perfectly  clear 
that  the  plaintiffs  are  not  entitled  to  a  double  compensation 
for  their  damages,  and  it  is  equally  clear  that  in  case  of  the 
money  being  recovered  back,  they  could  maintain  no  new 
suit  against  the  defendant  on  this  charter  party.     Against 
the  defendant  the  underwriters  have  no  cause  of  action ;  but 
the  defendant  should  be  at  liberty  to  contest  the  seaworthi- 
ness of  the  ship  with  those  underwriters,  if  they  should 
choose  to  do  so.  The  plaintiffs'  counsel  have  offered  to  give 
the  defendant  credit  for  the  sums  they  have  received,  pro- 
vided he  will  indemnify  them  against  all  future  claims  by 
those  underwriters.  This  seems  to  me  to  reach  the  justice 
of  this  case,  and,  subject  to  that  restriction  and  modification, 
I  am  of  opinion  that  the  judgment  should  be  rendered  for 
the  plaintiffs. 

BRACKENRIDGE  J.  concurred. 

Judgment  for  plaintiffs. 


1814. 


MEYER 
et  al. 

v. 
BARKER. 


Pfuladelphiat 
Monday, 

_  January  17. 

Y  I  ^HIS  was  an  action  of  covenant,  in  which  the  defendant    A  plea  of  alien 
-*•     since  the  last  continuance  pleaded  as  follows  :  "  and  for  forThYh^1 


RUSSEL  against  SKIPWITH. 


"  further  plea  the  defendant  comes  and  says,  that  the  plain- plaintiffis  hims^!f 

.  *    '  an  enemy,  or  au- 

"  tiff  ought  not  further  to  have  or  maintain  his  aforesaid  hering  to  die 

-•          i  ,  .  ,   IT",,-          r>  i-  enemy,  or  what 

action,  because  the  said  William  Kussel  is  an  alien  enemy,  \a  equivalent  to 
"  born  out  of  the  allegiance  of  the  United  States,  and  within  ^^S^ 
"  the  allegiance  of  a  foreign  sovereign,  to  wit,  The  Kingofisresi(li"Kinthe 
"  the  United  Kingdom  of  Great  Britain  and  Ireland,  and  iseSy*° 
"  not  a  citizen  of  the  said  United  States  of  America,  nor 
"  resident  within  the  same ;  and  that  since  the  last  continu- 

VOL.  VI.  2  H 


242 


CASES  IN  THE  SUPREME  COURT 


1814.        "ance  of  the  plea  between  them,  to  wit,  the day  of 

RUSSELL     *' »  a  public  war  has  been  commenced,  and  is  now  carried 

v.  "  on,  between  the  king  of  Great  Britain  and  Ireland  and  their 

V-KIPWITH.  "  dependencies,  and  the  said  United  States  of  America  and 
"  their  territories.  And  this  &c.  Wherefore  &c."  To  this 
plea  there  was  a  general  demurrer,  and  joinder. 

Rawle  for  the  plaintiff.  The  plea  is  bad,  because  the  de- 
fendant has  not  set  forth  every  fact  necessary  to  bar  the 
plaintiff.  He  does  not  aver  that  the  plaintiff  is  residing  in 
an  enemy's  country.  It  is  a  hard  and  odious  plea,  and  must 
be  construed  strictly.  Casseres  v.  Bell  (a). 

The  rigour  of  the  ancient  practice  of  confiscation  has  been 
banished  from  modern  war.  Credits  are  no  longer  affected 
by  war.  A  reasonable  time  is  allowed  for  the  recovery, 
removal,  and  disposal  of  effects;  and  the  humane  and  rational 
principle  is  adopted  in  England,  that  barely  owing  allegiance 
to  a  belligerent,  is  no  bar  to  the  action,  without  a  residence 
in  the  country  of  the  enemy.  Bynk.  Law  of  war,  56,  57., 
1  Emerg.  567.,  4  U.  S.  Laws  160.  Act  of  6th  July  1798., 
Treaty  with  G.  B.  1794,  Art.  1O.  In  Casseres  v.  Bell,  the 
plea  did  not  describe  the  plaintiff  as  residing  in  the  enemy's 
country,  and  it  was  held  bad.  In  Lebret  v.  Paptllon  (l>), 
Brandon  v.  Nesbit  (c),  and  Bell  v.  Chapman  (</),  the  pleas 
all  contain  this  description,  and  were  held  good.  An  enemy 
residing  in  this  country  under  the  protection  of  the  govern- 
ment, may  sue,  Wells  v.  Williams  (c]  ;  and  all  who  are  per- 
mitted to  reside  here,  are  under  the  protection  of  the 
government.  Clarke  v.  Morey  (,/")•  It  is  the  residence  then 
that  imparts  the  disability  to  the  alien,  or  takes  it  away,  and 
upon  the  principle  that  the  alien  enemy  residing  in  his 
own  country,  would  by  means  of  his  suit  add  strength  to  the 
enemy  ;  but  when  residing  here  or  in  a  neutral  territory,  the 
enemy  gains  nothing  by  his  privilege.  Sparenburgh  v.  Ban- 
natyne  (g).  In  the  latter  case  serjeant  Marshall  says  :  "  The 
"  disability  is  now  confined  to  two  cases,  viz.  where  the 
"  right  sued  for  is  acquired  in  actual  hostility,  Anthon  v* 
"  Fisher,  Doug.  646.  n.,  and  where  the  -plaintiff  being  an 
"  alien  enemy  is  resident  in  the  enemy's  country.  Brandon 
(n)  8  D.  &?  E.  166. 

(<•)  6  D.  &  E.  23. 


( (1)  10  Johns.  1 83. 
(e)  1  L.  Ray.  282. 


(/)  10  Johns.  69. 

1  Eos.  &  Fid.  163. 


OF  PENNSYLVANIA.  243 

"  v.  Nesbit,  6  T.  R.  23.,  Bristow  v.    Towers,  6  T.  R.  35."        1814. 
An  Englishman  not  residing  in  England,  may  be  considered       RUSSEL 
as  having  expatriated  himself ;  he  ought  for  the  purposes  of          v. 
suit,  as  he  is  for  the  purposes  of  commerce,  to  be  consi-    SKIPWITH. 
dered,  as  belonging  to  the  country  where  he  is  dqmiciled. 
Any  other  principle  would  entail  the  disability  upon  a  natural 
born  Englishman,  although  he  had  resided  nearly  all  his 
life  in  a  foreign  country.  In   Clark  v.  Morey,  Kent  J.  says, 
"  it  seems  now  to  be  the  law  of  England,  that  the  plea  alien 
"  enemy  must  aver  commorant  in  the  country  of  the  enemy." 

Riddle  and  Dallas  contra.  The  liberality  of  modern  war 
has  exempted  debts  from  confiscation,  but  it  leaves  the 
question  of  suit  upon  the  old  ground.  We  rely  on  the  gene- 
ral rule  that  an  alien  enemy  residing  out  of  the  country  can- 
not support  an  action.  The  sovereign  with  whom  we  are  at 
war,  represent  all  his  subjects  ;  and  he  being  an  enemy,  they 
are  such,  without  regard  to  the  place  of  abode.  Vattd^  lib. 
3.  c.  4.  sec.  7O,  71.  73.  75,  76, 77-  When  a  suit  is  permitted 
in  consequence  of  residence  here,  it  is  not  that  residence 
gives  or  takes  away  the  privilege,  but  it  is  that  from  resi- 
dence is  presumed  a  safe  conduct  and  a  special  protection  of 
the  government,  which  excepts  the  particular  case  from  the 
general  disabilities  of  the  enemy  character.  1  Bl.  Comm.  372. 
Wilcocks  v.  Henry  (a),  Co.  Lift.  129.  b,  Hargrove's  note  203. 
1  Com.  Dig.  415.  Alien  C.  5.  All  that  is  required  in  the  plea, 
is  to  shew  that  he  is  an  alien  enemy  ;  and  if  any  change  has 
taken  place  in  the  English  rule,  it  is  since  the  revolution, 
and  does  not  affect  us.  But  in  fact  there  is  no  change  which 
can  affect  our  plea.  The  old  form  of  plea  averred  that  the 
plaintiff  was  an  alien  born  under  the  dominion  of  a  foreign, 
power,  between  whom  and  the.  king  there  was  then  war;  and 
by  the  events  of  the  French  revolution  this  bore  with  severity 
upon  native  Frenchmen,  who  were  in  the  service  of  the  allies, 
or  had  received  a  commission  from  England.  Hence  it  be- 
came necessary  to  aver  residence  in  the  enemy's  country, 
or  that  the  plaintiff  himself  was  an  alien  enemy.  The  old 
form  would  not  answer.  But  if  the  plea  contains  an  aver- 
ment that  the  plaintiff  is  an  alien  enemy,  there  is  no 
authority  for  saying  that  his  residence  in  the  enemy  country 
(n)  I  Dan.  71 . 


244  CASES  IN  THE  SUPREME  COURT 

1814.        must  also  be  averred.   In  Casseres  v.  Bell,  the  plaintiff  was 
RUSSKL       not  stated  to  be  an  alien  enemy,  nor  could  it  be  collected 
i'.  from  the  plea.  Lebret  v.  Papillon  was  the  first  case  in  which 

SKIPWITH.  residence  in  the  enemy  country  was  stated,  and  that  arose 
from  the  peculiar  situation  of  France.  All  the  cases  shew 
that  the  plea  of  alien  enemy  is  good.  In  Openheimer  v.  Levy 
(a),  the  plea  was  held  bad,  because  it  did  not  shew  that  the 
plaintiff  was  an  alien  enemy.  It  is  true  that  in  several  of  the 
pleas,  residence  in  the  enemy  country  is  unnecessarily  aver- 
red; but  this  was  surplusage,  which  did  not  vitiate.  If  the 
plaintiff  alleges  expatriation,  the  right  of  which  is  still  vex- 
ata  qucestio,  he  should  reply  to  the  plea  ;  it  is  impossible  for 
the  defendant  to  know  what  the  plaintiff  is  doing  in  a  neutral 
country,  if  he  is  there  at  all.  By  the  plaintiff's  argument, 
every  officer  of  the  British  government,  not  residing  in 
British  territory,  might  now  maintain  a  suit  here. 

TILGHMAN  C.  J.  This  was  an  action  of  covenant  for  the 
recovery  of  a  debt.  The  defendant  pleaded  that  the  plaintiff 
is  an  alien  enemy,  born  out  of  the  allegiance  of  the  United 
States,  and  under  the  allegiance  of  the  king  of  the  United 
Kingdom  of  Great  Britain  and  Ireland,  between  whom  and 
the  United  States  there  is  war ;  and  that  the  plaintiff  is  not  a 
citizen  of  the  United  States*  nor  resident  within  the  same. 
To  this  plea  there  was  a  demurrer  and  joinder.  The  case 
must  be  determined  upon  the  principles  of  the  common  law, 
not  being  affected  by  the  treaty  between  the  United  States 
and  Great  Britain,  which  only  provides  against  the  confisca- 
tion or  sequestration  of  private  debts.  The  rigour  of  the 
ancient  law  has  been  softened  by  increased  civilization,  and 
the  principle  has  gradually  gained  ground,  that  the  con- 
tracts of  individuals  ought  not  to  be  affected  by  the  quarrels 
of  nations.  Between  some  nations,  it  is  stipulated  by  treaty, 
that  a  state  of  war  shall  not  prevent  the  recovery  of  debts ; 
but  where  no  treaty  exists,  although  it  is  against  usage  to 
confiscate,  yet  the  utmost  stretch  of  modern  refinement  has 
never  gone  to  the  extent  of  permitting  the  maintenance  of 
an  action  by  an  alien  enemy,  except  under  particular  cir- 
cumstances. It  has  never  been  supposed  that  one,  who  was 
himself  an  enemy,  and  the  subject  of  a  sovereign  at  war 

(«)  2  Stra.  1072. 


OF  PENNSYLVANIA. 


245 


with  the  United  States,  could  support  an  action,  unless  he 
resided  within  the  United  States,  under  the  protection  of 
the  government  express  or  implied.  But  there  has  been  a 
difference  of  opinion,  and  a  change  of  the  law  with  respect 
to  the  manner  in  which  the  defendant  may  avail  himself 
by  pica  of  the  plaintiff's  disability.  It  was  formerly  suffi- 
cient to  set  forth  that  the  plaintiff  was  an  alien,  born  out  of 
the  allegiance  of  the  king,  in  whose  courts  the  suit  was 
brought,  and  within  the  allegiance  of  another  king  at  war 
with  him.  From  these  circumstances,  it  was  taken  to  follow 
as  a  necessary  consequence,  that  the  plaintiff  was  himself  an 
enemy.  But  the  injustice  of  this  conclusion  was  manifested 
by  the  situation  of  the  kingdoms  of  Europe  after  the  French 
revolution.  France  is  now  at  war  with  almost  all  Europe  ; 
yet  many  persons,  born  under  the  allegiance  of  Louis  XVI., 
are  fighting  against  France,  under  the  standard  of  the  al- 
lied powers.  Suppose  an  action  then  to  be  brought  in  Eng- 
land, by  a  Frenchman  holding  a  commision  under  England 
in  the  war  against  France,  it  would  be  no  answer  to  the 
action  to  say,  that  the  plaintiff  was  born  under  the  allegiance 
of  Louis  XVI.,  and  that  war  now  exists  between  France 
and  England.  In  order  to  disable  the  plaintiff,  you  must  go 
farther,  and  say  that  he  himself  is  an  enemy,  or  adhering  to 
the  enemy.  But  there  is  another  circumstance  to  be  attend- 
ed to.  Although  the  plaintiff  be  an  enemy,  yet  if  he  resides 
in  the  country  were  the  suit  is  brought,  under  the  protec- 
tion of  the  government,  he  may  support  an  action.  There- 
fore, if  the  defendant  in  his  plea  states,  that  the  plaintiff 
resides  in  the  country,  it  lies  upon  him  to  shew  that  he  is 
not  under  the  protection  of  the  government.  This  I  take 
to  be  the  substance  of  the  modern  decisions,  to  which  I 
shall  presently  advert.  But  it  never  can  be  supported,  that 
it  is  necessary  for  the  defendant  to  aver  that  the  plaintiff  is 
residing  in  the  country  of  the  enemy.  Upon  this  principle, 
suits  may  be  maintained  by  every  officer,  soldier  and  sea- 
man of  the  British  army  and  navy  out  of  the  kings  domi- 
nions, by  all  British  ministers  at  foreign  courts,  and  by  all 
British  subjects  in  foreign  countries,  although  employed  as 
agents  for  their  own  government,  or  in  their  capacity  of 
merchants  or  otherwise  adhering  to  their  king.  The  plea 
in  the  case  before  us,  does  not  state  that  the  plaintiff  adheres 


1814. 


RUSSEL 
V. 

SKIPWITH. 


246 


CASKS  IN  THE  SUPREME  COURT 


1814. 


to  the  enemy,  but  it  states  that  he  is  himself  an  enemy, 
which  is  stronger.  A  plea  however  is  not  the  worse  for 
saying  that  the  plaintiff  is  an  enemy,  and  that  he  is  adher- 


RUSSEL 

v. 

SKIPWITH.  ing  to  the  enemy,  and  resides  in  the  country  of  the  enemy, 
because  surplusage  does  not  vitiate.  Such  was  the  plea  in 
Lebret  v.  Papil/on,  4  East  502.  Although  not  thought  to 
be  in  very  good  form,  yet  it  \vas  held  good,  because,  as 
Lord  Ellenborough  observed,  "  it  appeared  from  the  whole 
"  record  that  the  plaintiff  was  an  alien  enemy  "  The  same 
in  substance  was  the  plea  in  Brandon  v.  Nexbitt,  6  T.  Rep. 
23.  There  also  it  was  held  good,  on  the  ground  that  an. 
action  zvill  not  lie  either  by  or  in  favour  of  an  alien  enemy  ; 
and  Lord  Kenyan  declared,  "  that  they  had  not  found  a  sin- 
"  gle  case  in  which  the  action  had  been  supported  in  favour 
"  of  an  alien  enemy."  The  plaintiffs  counsel  rely  on  the 
case  of  Casseres  v.  Bell,  8  Term  Rep.  166.  The  plea  was 
that  the  plaintiff  was  an  alien  born  in  foreign  parts,  viz.  in 
Holland,  out  of  the  allegiance  of  the  king  &c.,  and  that 
there  was  war  between  the  king  and  the  persons  exercising 
the  powers  of  government  in  Holland  &c.  It  was  held  bad, 
and  with  great  reason,  for  it  neither  appeared  that  the  plain- 
tiff was  an  enemy  or  adhered  to  the  enemy.  Lord  Kenyan 
in  delivering  his  opinion  says,  that  the  plea  must  negative  all 
those  facts,  which  if  shewn  by  the  plaintiff,  would  enable 
him  to  support  an  action,  such  as  that  the  plaintiff  was  re- 
siding in  England  under  the  king's  protection  &c. ;  and  that 
the  plaintiff  shall  not  be  put  to  shew  them  by  a  replication. 
He  is  satisfied  of  this  he  says  from  the  case  of  Denier  v. 
Arnaud,  4  Mod.  405,  the  original  record  of  which  he  had 
examined,  and  Openheimer  v.  Levy,  2  Stra.  1082.  Of  the 
original  record  in  Denier  v.  Arnaud  we  cannot  judge,  not 
being  in  possession  of  it ;  but  from  the  case,  as  reported,  it 
appears  that  the  plea  was,  that  the  plaintiff  was  "  alienigena, 
"zn  Regno  Francice  sub  ligiantia  adversarii  domini  regis 
*' oriundus"  It  struck  the  Court,  that  oriundus,  importing 
future  time,  was  not  an  affirmative  expression,  and  that 
natus  should  have  been  used  instead  of  it ;  this  occasioned 
the  doubt,  but  the  Court  having  taken  time  to  consider  of 
it,  held  the  plea  good  on  the  authority  of  precedents  cited 
from  Rastal.  It  appears  also  that  the  best  Roman  authors 
use  the  word  oriundus  to  denote  past  time,  contrary  to  the 


OF  PENNSYLVANIA. 


247 


general  significations  of  participles  of  that  termination. 
Openheimer  v.  Levy  is  considered  as  accurately  reported  by 
Sir  J.  Strange.  The  plea  was  "  that  the  plaintiff  was  an 


1814. 


RUSSEL 
V. 

"  alien,  born  at  Vienna,  under  the  dominion  of  the  king  of  SKIPWITH. 
"the  Romans  &c. ;"  held  to  be  bad,  because  an  alien  friend 
may  support  an  action,  and  it  is  not  said  that  the  plaintiff 
was  an  alien  enemy.  The  last  case  which  I  shall  mention, 
and  on  which  the  plaintiff's  counsel  principally  relied,  is 
Clarke  \.  Mvrvy,  1O  Johns.  N.  T.  Rep.  69.  The  plea, 
which  was  held  bad  on  demurrer,  contained  in  substance 
that  the  plaintiff  was  born  out  of  the  allegiance  of  the  United 
States,  and  within  the  allegiance  of  the  king  of  the  United 
Kingdom  of  Great  Britain  and  Ireland,  between  whom  and 
the  United  States  there  was  war  &c.,  and  that  the  plaintiff 
so  being  such  alien  born  &c.,  and  an  enemy  of  the  United 
States,  and  not  made  a  citizen  &c.,  came  into  the  said 
United  States,  and  still  remains  therein  without  letters  of 
safe  conduct  from  the  President  of  the  United  States,  or 
any  license  to  remain  in  the  United  States.  The  principle  on 
which  this  case  was  decided,  is  agreeable  to  what  I  have 
already  declared  to  be  my  opinion.  An  enemy  may  maintain 
an  action  if  residing  in  the  United  States  under  the  protec- 
tion of  the  government.  That  this  was  the  ruling  principle, 
appears  from  the  following  expressions  of  the  Chief  Justice, 
who  delivered  the  opinion  of  the  Court.  "  In  the  case  be- 
*'  fore  us,  we  are  to  take  it  for  granted,  (for  the  suit  was 
"  commenced  before  the  present  war)  that  the  plaintiff  came 
"  to  reside  here  before  the  war,  and  no  letters  of  safe  con- 
"  duct  were  therefore  requisite,  nor  any  license  from  the 
"  President.  The  license  is  applied  by  law  and  the  usage  of 
"  nations.  If  he  came  here  since  the  war,  the  license  is  also 
"  implied,  and  the  protection  continues  until  the  executive 
"  shall  think  proper  to  order  the  plaintiff  out  of  the  United 
"  States  ;  but  no  such  order  is  stated  or  averred.5'  There  is 
nothing  in  this  case  controverting  the  fundamental  principle, 
that  an  alien  enemy  cannot  sue  unless  he  be  under  the  pro- 
tection of  the  government.  I  am  therefore  of  opinion  that 
the  defendant's  plea  is  good,  because  it  shews  the  plaintiff 
to  be  an  alien  enemy,  without  any  circumstance  from  which 
the  protection  of  the  government  can  be  implied.  But  pos- 
sibly the  truth  may  be  that  Mr.  Russet,  although  born  a 


248 


CASES  IN  THE  SUPREME  COURT 


1814.        British  subject,  may  at  present  be  neither  an  enemy  nor  ad- 

RUSSEL heringto  the  enemy.  And  as  I  trust  that  the  Courts  of  Pcnn- 

v  syhania  will  always  be  forward  in  administering  justice  to 

SKIPWITH.    aliens,  on  the  most  liberal  principles  recognized  by  the  most 

civilized  nations,  I  shall  be  for  permitting  the  plaintiff's 

counsel  to   withdraw  their  demurrer,  and  plead  by  way  of 

replication  any  facts  in  favour  of  their  client,  which  the 

truth  of  his  case  will  justify. 

YEATES  J.  The  plaintiff  in  this  instance  by  his  demurrer 
has  confessed  the  truth  of  the  facts  set  out  in  the  defend- 
ant's plea,  provided  those  facts  are  well  and  sufficiently 
pleaded.  The  plea  states  that  the  plaintiff  is  an  alien  enemy, 
born  out  of  the  allegiance  of  the  United  State*  of  America, 
and  within  the  allegiance  of  a  foreign  sovereign,  to  wit,  the 
King  of  the  United  Kingdom  of  Great  Britain  and  Ireland, 
and  is  not  a  citizen  of  the  said  United  States  of  America* 
nor  resident  within  the  same ;  and  that  since  the  last  continu- 
ance of  the  plea,  a  public  war  has  been  commenced  and  is 
now  carried  on  between  the  King  and  government  of  the 
United  Kingdom  of  Great  Britain  and  Ireland  and  their 
dependencies,  and  the  said  United  States  of  America  and 
their  territories.  To  this  it  is  objected,  that  in  such  pleas  as 
the  present,  it  is  indispensably  necessary  that  every  fact 
should  be  stated  affirmatively  which  may  oust  the  plaintiff 
from  his  right  of  action;  and  that  the  commorancy  of  the 
plaintiff  in  the  British  Kingdom  or  its  dependencies  is 
essentially  necessary  for  this  purpose.  This  seems  to  be  the 
modern  English  law  as  recognized  by  Kent  Chief  Justice, 
1O  yohns.  74,  Clark  v.  Morey,  founded  on  the  case  of  Le- 
bret  v.  Papillon*  4  East  502,  and  seems  to  have  been  adopt- 
ed  in  Neva  Tork  in  Bell  v.  Chapman,  10  Johns.  183. 

But  our  decision  herein  must  be  governed  by  the  state  of 
the  law  as  it  existed  amongst  us  prior  to  our  municipal  act 
of  28th  January  1777.  For  by  that  statute,  the  common  law, 
and  such  of  the  statute  laws  of  England,  as  had  theretofore 
been  in  force  amongst  us,  were  declared  to  be  binding  on 
the  inhabitants  of  this  state. 

The  general  principle  laid  down  in  the  books  is,  that  an 
alien  enemy  cannot  support  a  suit  in  a  court  of  justice  ;  his 
rights  are  suspended  daring  the  war.  The  ground  of  the 


OF  PENNSYLVANIA, 


249 


restriction  and  reason  of  the  law  is,  that  if  he  was  permitted 
to  maintain  an  action,  he  would  have  it  in  his  power  to" 
withdraw  the  money  recovered,  and  add  it  to  ,the  funds  of 
his  native  country.  In  vain  have  I  searched  the  entries, 
reports  and  elementary  treatises,  for  any  case  wherein  it  has 
been  held  previously  to  1777,  that  an  alien  enemy  residing 
in  a  neutral  country  may  maintain  an  action.  The  tenth 
article  of  the  British  treaty  of  1795  does  not  legalize  such 
a  proceeding.  I  will  not  pretend  to  determine,  what  political 
events  gave  birth  to  an  alteration  of  the  English  law  in  the 
particular  under  consideration  ;  but  it  appears  clear  to  me 
that  the  residence  of  an  alien  enemy  in  a  neutral  country 
cannot  form  an  exception  to  the  reason  or  policy  of  the 
general  principle  ;  because  if  he  can  withdraw  the  money 
into  a  neutral  country,  he  may  readily  transfer  it  from  thence 
into  his  native  kingdom.  Odious  as  this  branch  of  the  law 
may  be,  inasmuch  as  in  its  operation  it  materially  affects  the 
private  rights  of  individuals,  it  is  nevertheless  binding  on 
us,  I  am  therefore  of  opinion  that  the  demurrer  should  be 
overruled,  and  that  the  plaintiff  should  be  at  liberty  to  reply 
to  the  plea  if  he  shall  deem  it  advisable,  upon  payment  of 
the  costs  incurred  since  his  demurrer. 

BRACKENRIDGE  J.  concurred  with  the  Chief  Justice. 

Demurrer  overruled,  with  liberty  to  reply. 


1814. 


RUSSEL 
V. 

SKIPWITH. 


6b  249 
6  178 
17  29 
58  352 


The  Commonwealth  against  CORNISH. 


Philadelphia, 
Friday, 
January  21. 


THIS  was  an  indictment  of  the  defendant  for  penury     One  who  swears 
,     f  .  r    ,  ^   ,J  'wilfully  and  deli- 

m  swearing  before  a  magistrate  of  the  county,  "  thatberateiy  to  a  mat- 

«  Jacob  Miley,  on  the   8th  November  1813,  wilfully  and  [*j.^  hbeu[ashly 

"  maliciously  did  shoot  him  the  said  Cornish,  with  shot  out  which  he  has  no 
..     P  ,,  probable  eause  far 

"  Of  a  gun.  Relieving,  ami 

which  is  false,  is 

He  was  tried  before  the  Chief  Justice  and  Judge  Bracken-*®**  °r  perjuiy' 
ridge,  at  a  Court  of  Oyer  and  Terminer  on  the  15th  inst., 
when  it  appeared,  that  on  the  night  of  the  8th  November  last, 
a  great  riot  occurred  in  the  Northern  Liberties,  at  which 
several  guns  were  fired.  The  prisoner  was  then  shot  in  the 
face,  and  as  one  witness  swore,  immediately  said,  "  Jacob 

VOL.  VI.  2  I 


250 


CASES  IN  THE  SUPREME  COURT 


1814. 


COMMON- 
WEALTH 

v. 
CORNISH. 


"  M'tley  has  shot  me."  At  this  time  the  crowd  was  great, 
'between  one  and  two  thousand  persons  being  present,  and 
the  witness  who  knew  Miley,  took  the  person  who  fired  the 
gun,  from  his  size  and  dress,  to  be  Miley, but  was  not  sure. 
On  the  10th  November,  Cornish  charged  Miley  on  oath  be- 
fore the  magistrate,  in  consequence  of  which  a  warrant  was 
issued,  and  Miley  brought  up  on  the  12th.  Cornish  was  then 
again  sworn,  and  repeated  that  Miley  had  shot  him  with 
intent  to  kill ;  that  he  knew  him  well,  pointed  to  him,  and 
said  that  Miley  was  a  mutton  butcher,  of  whom  he  had 
often  bought  mutton. 

Miley  produced  unquestionable  evidence,  that  he  was 
about  twenty  miles  from  the  Northern,  Liberties  during  the 
whole  of  the  evening  and  night  of  the  8th  November  ;  and 
swore  personally,  that  he  did  not  know  Cornish,  nor  did  he 
recollect  ever  to  have  seen  him  until  in  the  magistrate's 
office.  He  knew  of  no  cause  of  enmity  that  Cornish  could 
have  against  him. 

The  counsel  of  Cornish  conceded  the  alibi  of  Miley,  and 
rested  the  case  on  the  defendant's  mistaking  another  person 
for  him.  The  Chief  Justice  told  the  jury,  that  if  they  should 
be  of  opinion  that  Cornish  had  any  reasonable  cause  for  mis- 
taking the  person  of  Miley,  they  ought  to  acquit  him  ;  but  if 
it  should  appear  to  have  been  a  rash  and  presumptuous  oath, 
taken  without  any  probable  foundation,  they  ought  to  find 
him  guilty,  although  he  might  not  have  beea  certain  that 
Miley  was  not  the  person  who  shot  him. 

The  jury  found  him  guilty,  and  his  counsel  moved  for  a 
new  trial. 

A.  Coxe  for  the  defendant. 

E.  Ingersoll  for  the  Commonwealth. 

TILGHMAN  C.  J.  after  stating  the  case  delivered  his  opi- 
nion as  follows : 

It  is  contended,  that  there  can  be  no  perjury  where  a  man 
believes  what  he  swears.  But  it  appears  to  me  that  a  posi- 
tion so  extensive  cannot  be  supported.  He  ought  at  least  to 
have  some  probable  cause  for  belief,  unless  the  oath  be  taken 
under  such  circumstances  of  haste  or  surprise  as  afford  no 
opportunity  of  delihr ration.  If  a  man  undertakes  to  swear 
to  a  matter  of  which  he  has  no  knowledge,  he  is  perjured, 
although  what  he  has  sworn  turns  out  to  be  true.  This  is 


OF  PENNSYLVANIA. 

proved  by  the  case  cited  by  the  defendant's  counsel  from 
3  Inst.   166,  where  a  man  was  adjudged  guilty  of  perjury" 
for  swearing  to  the  value  of  goods  which  he  never  saw  or 
knew,  although  his  valuation  was  not  incorrect.     There  is 
corruption  in  undertaking  to  swear  positively  to  a  thing  of 
which  you  have  little  knowledge,  and  which  you  may  know 
if  you  will  take  the  trouble  to  enquire  j  and  when  there  is 
this  kind  of  corruption,  the  law  implies  malice.     Cornish 
must  have  known  that  it  was  difficult  to  distinguish  a  man's 
person  in  a  crowd  in  the  night,  and  he  ought  to  have  made 
some  enquiry  before  he  took  the  oath.  If  he  had  acted  with 
reasonable  caution,  he  would  have  discovered  the  truth.    It 
is  objected  that  it  may  be  of  dangerous  consequence,  if  wit- 
nesses are  convicted  for  swearing  to  what  they  believe  to  be 
true.     On  the  other  hand,  it  will  be   more  dangerous  if 
they  are  to  escape  punishment,  who  rashly  and  obstinately 
persist  in  a  false  oath,  in  a  matter  of  which  they  will  not 
take  the  pains  to  inform  themselves.     It  is  said  by  Black- 
stone^  4  Black.  137,  that  there  is  perjury  where  one  swears 
•wilfully ',  absolutely  and  falsely.     That  the  oath  of  Cornish. 
•was  absolute  and  false  is  not  denied.  It  was  ivilful  also,  ac- 
cording to  the  legal  import  of  that  word,  by  which  it  is  only 
understood  that  the  oath  is  taken  with  some  degree  of  deli- 
beration, and  "  not  merely  through  surprise  or  inadvertency, 
"  or  a  mistake  of  the  true  state  of  the  questiog ;"    (3  Sac. 
814,  A.*)  Now  here  was  great  deliberation,  or  at  least  room 
for  deliberation,  for  their  was  an  interval  of  two  days  be- 
tween the  first  and  second  oath,  and  the  first  was  taken  two 
days  after  the  affray  in  which  the  defendant  was  shot.     In 
cases  where  the  oath  is  clearly  false,  I  know  no  rule  more 
reasonable,  than  to  leave  it  to  the  jury  to  decide,  whether 
there  was  any  probable  ground  for  mistake.  I  am  therefore 
of  opinion  that  a  new  trial  should  not  be  granted. 


BRACKENRIDGE  J.  The  question  resolves  itself  into  this, 
can  one  be  guilty  of  perjury  who  believes  what  he  says  to 
be  the  truth?  Probable  cause,  or  reasonable  ground  of  belief  ^ 
in  a  prosecution  in  a  course  of  justice,  will  exempt  from 
damages.  The  want  of  probable  cause  or  reasonable  ground, 
part  ratione  will  subject  to  the  conviction  of  perjury;  for 
the  mala  mens,  maHtla,  or  malice,  is  an  inference  of  law  from 


251 


1814. 


COMMON- 
WEALTH 

v. 
CORNISH. 


252 


CASES  IN  THE  SUPREME  COURT,  &c. 


1814. 


COMMON- 
WEALTH 

v. 
CORNISH. 


the  want  of  probable  cause  or  reasonable  ground.  I  am  not 
""to  be  at  the  mercy  of  the  weakness  of  a  man,  and  the  law 
will  protect  against  the  weakness,  as  well  as  against  the  ac- 
tual wickedness  of  him,  who  attacks  my  reputation  by  an 
oath  in  a  court  of  justice.  It  is  the  same  thing  to  me,  whe- 
ther it  was  his  weakness  or  actual  malice  and  wickedness, 
that  led  him  to  take  the  oath.  It  interests  the  public,  that 
rash  and  unadvised  swearing  a  crime  upon  another,  should 
be  restrained ;  and  how  can  this  be  done,  if  the  only  enquiry 
shall  be,  whether  the  weak  man  really  thought  that  which  he 
swore  was  true. 

In  the  present  case,  it  cannot  be  doubted,  but  that  an 
action  of  slander  could  have  been  supported  on  words  spo- 
ken to  the  eflect  of  what  was  sworn,  even  though  believed 
by  him  publishing.  The  being  spoken  in  a  course  of  justice 
will  protect  against  this.  The  beinpr  sworn  in  a  course  of 
justice,  will  not  protect  on  the  ground  of  a  probable  cause. 
There  was  no  probable  cause  in  this  case,  no  reasonable 
ground.  The  charge  was  rashly  npde,  and  wantonly  per- 
sisted in,  without  throwing  himself  open  to  conviction  of  his 
mistake,  or  using  due  means  to  inform  himself  of  it,  though 
he  would  seem  to  have  had  abundant  opportunity  of  making 
enquiry,  and  informing  himself  as  to  the  ground  of  his  mis- 
conception. The  not  having  done  this,  shews  a  carelessness 
as  to  what  foe  swore;  and  even  when  in  court  he  persisted 
in  his  first  belief. 

We  are  between  Scylla  and  Charybdis  in  this  case.  On 
the  one  hand,  there  is  the  risk  of  discouraging  testimony 
given  for  the  Commonwealth;  on  the  other  hand,  there  is 
the  risk  of  individuals  from  rash  and  unadvised  swearing. 
There  can  be  no  doubt  but  that  an  action  for  a  malicious 
prosecution  would  lie  in  this  case;  but  what  satisfaction 
would  it  be  to  recover  damages  against  a  defendant  of  no 
property  ?  It  ought  to  be  at  a  man's  risk  to  undertake  to 
swear  positively,  under  circumstances  where  he  ought  to 
have  mistrusted  his  vision,  and  could  not  have  been  certain, 
as  to  what  he  undertook  to  say  positively  that  he  saw.  This 
was  the  case  here. 

New  trial  refused. 

EXD  OF  DECEMBER  TERM,  1813. 


CASES 


IN   THE 


SUPREME   COURT 


OF 


PENNSYLVANIA. 

Eastern  District,  March  Term,  1814. 


Philadelphia, 

Wednesday, 

Gi  R  A  R  D  against  HE  Y  L  .  March  30-~ 

To  entitle  a  de- 
fendant to  plead 

HHE  plaintiff  obtained  a  judgment  by  arbitration  on  the  his  freehold  under 
A  22d  of  last  month,  for  about  1100  dollars;  and  the  de-^^o^ 
fendant  by  an  entry  on  the  docquet  suggested  his  freehold,  must  have  a  free- 

f  _  _  hold  worth  the 

to  obtain  a  stay  of  execution  under  the  act  or  21st  March  amount  of  the 

IRDfi     vrr    7  judgment,  and  up- 

i  «ut>,  sec.  7.  on  which  there  is 

no  incumbrance. 
.  i         i    r       i  i  i    It  's  not  sufficient 

Binney  obtained  a  rule  upon  the  defendant,  returnable  that  the  freehold 
this  morning,  to  shew  cause  why  this  suggestion  or  pl^I^UoSejSdg. 
should  not  be  struck  off  the  record,  upon,  the  ground  that  jnent,  after  pay 
the  defendant  had  not  such  a  freehold  as  was  intended  bybrances. 
the  law.  The  law  enacts  that  the  writ  of  execution  shall  be 
staid  on  the  judgment,  "  if  exceeding  four  hundred  dollars, 
"  twelve  months,  counting  from  the  first  day  of  the  term  to 
"  which  the   original  process  issued  is  returnable,   if  the 
"  defendant  in  the  opinion  of  the  Court  is  possessed  of  a 
**  freehold  estate,  worth  the  amount  of  such  judgment,  clear 
"  of  all  incumbrances." 

Hopkins,  who  shewed  cause  for  the  defendant,  admitted 
that  his  only  freehold  in  the  county  was  a  house  and  lot,  for 
which  he  had  given  four  thousand  dollars  on  the  25th  May 
1807,  and  on  which  there  were  two  mortgages,  one  of  the 
16th  July  1807,  for  one  thousand  dollars,  and  another  of  the 
16th  July  1811,  for  three  thousand  dollars;  but  he  offered 
to  prove  by  a  witness  in  court,  that  the  property  was  worth 


254 


CASES  IN  THE  SUPREME  COURT 


1814. 


GlRAUD 
V. 

HEYL. 


.Pluladelphia, 
Thursday, 
March  31. 

If  the  late  she- 
riff has  executed 


more  than  six  thousand  dollars,  and  that  an  offer  for  it  to 
that  amount  had  been  refused.  The  counsel  then  argued, 
that  security  to  the  plaintiff  was  the  only  object  of  the  law ; 
and  that  according  to  its  spirit,  the  defendant  had  a  freehold 
equal  to  the  judgment,  clear  of  all  incumbrances,  or  in  other 
words,  after  all  incumbrances  should  be  cleared  or  paid  off. 
Such  had  been  its  interpretation  in  other  courts  ;  and  upon 
any  other  construction,  an  incumbrance  of  ten  pounds  would 
take  away  the  privilege  from  a  freehold  of  ten  thousand. 

Binney  in  reply  said,  that  no  argument  could  make  the 
act  plainer.  The  defendant  claims  a  privilege,  and  it  is  no 
hardship  upon  him  to  be  asked  to  bring  his  case  within  the 
fair  and  natural  import  of  the  law.  He  must  have  a  free- 
hold clear  of  all  incumbrances,  not  above,  or  more  than,  but 
clear.  Any  incumbrance  destroys  the  privilege.  If  the  de- 
fendant obtains  a  stay,  what  certainty  is  there  that  the  whole 
property  may  not  be  swept  away  to-morrow,  by  an  execution 
upon  one  of  the  mortgages.  The  law  intended  that  the 
plaintiff  should  have  a  security  indefeasible  by  the  act  of 
any  one. 

PER  CURIAM.  The  act  is  too  clear  for  a  doubt.  The  de- 
fendant says  he  can  prove  the  estate  is  worth  six  thousand 
dollars.  How  can  he  prove  that  if  a  lev ari  facias  should 
issue,  and  it  should  be  sold  by  the  sheriff,  it  would  bring 
half  the  money  ?  Both  the  words  of  the  law  and  its  spirit 
are  against  the  privilege  in  this  casej  the  words,  because 
the  defendant  has  no  freehold  clear  of  incumbrances ;  the 
spirit,  because  it  did  not  intend  that  the  plaintiff's  judgment 
should  be  exposed  to  defeat  by  sale  under  a  prior  incum- 
brance.* 

Rule  absolute. 


ADAMS  and  another  against  THOMAI 


6b  254 
10  w  22 
10  w  23 
10  w  39 


a  deed,  and  at-  TN  this  case,  the  lands  of  the  defendant  had  been  sold 
Sdyfh?sldc-  b>r  ?aifez  Hyde,  late  sheriff  of  Luzerne  county,  under  a 
cessor  cannot  un-  testatum  venditioni,  issued  out  of  this  court  returnable  to 

tier  the  act  of  23d  -.'.,—  m,  ,  i       •         i 

, e\e-JDecember   lerm    1813.      1  he  purchase  money  having  been 
Paidi  the  sheriff  made  a  deed  for  the  lands,  to  Henry  Drin- 

riff  may  acknow-       •  f^e  freehold  in  question  was  afterwards  sold  under  a  Ji.fa.  in  this  case,  and 

though1  ouTof        ^  not  Produce  t*16  amount  ot  the  mortgages  and  interest. 

office. 


OF  PENNSYLVANIA. 


255 


ker  the  purchaser  ;  and  acknowledged  the  same  on  the  29th 
of  October  1813,  at  the  Wilksbarre  Court  of  Common  Pleas." 

Hyde  being  out  of  office,  the  purchaser  now  petitioned- 
the  Court  under  the  act  of  the  23d  of  March  1764,  to  direct 
the  present  sheriff  of  Luzerne  county,  to  execute  a  sufficient 
deed. 

Drinker  on  behalf  of  the  petitioner,  contended  that  the 
acknowledgment  was  an  essential  part  of  a  sheriff's  deed; 
and  that  the  former  sheriff  having  acknowledged  the  deed 
before  the  return  day  of  the  writ,  the  whole  was  a  nullity. 
Glances  Lessee  v.  Jones  (a).  That  the  petitioner's  case,  was 
within  the  equity,  if  not  within  the  words,  of  the  act  of 
1764;  that  the  acknowledgment  of  a  deed,  was  an  act  to  be 
done  by  the  sheriff,  as  sheriff;  and  that  the  former  sheriff 
could  now  do  no  such  act.  1  Dyer  41.  136  £.,  Moore  364. 
186.  431.,  Cro.  Eliz.,  512,  though  he  might  make  return  of 
whatsoever  he  had  done,  whilst  sheriff.  2  Ld.  Ray.  1O72. 

PER  CURIAM.  The  case  of  the  petitioner  is  not  within 
the  act  of  1764.  That  act  provides  for  the  case  where  a  sheriff 
has  made  no  deed;  but  the  late  sheriff  has  executed  a  deed 
to  the  petitioner,  which  it  is  said  has  not  been  acknowledged 
in  due  form  of  law.  The  acknowledgment  is  no  part  of  the 
deed ;  it  is  only  the  sanction  of  the  Court  to  the,  act  of  the 
sheriff.  The  practice  has  been  for  sheriffs,  after  their  term 
of  office  has  expired,  to  acknowledge  deeds  for  lands  sold 
by  them,  and  executed  whilst  they  were  in  office;  and  the 
Court  is  of  opinion  that  such  acknowledgments  are  suf- 
ficient. 


1814. 


ADAMS 
etal. 

v. 
THOMAS. 


66  2551 
6sr341 


The  Commonwealth  against  CALL  AN. 


Pftiladelphia, 

Thursday, 
March  31. 


rTPHIS  was  a  habeas  corpus  to  Lieutenant  Callan  of  the    A  mother  isa 
-•-  cavalry,  to  brine  up  the  body  of  JR.  L.  Caustin  a  minor  parent,  within  the 

J  7  *  act  ot  Congress 

of  19  years  of  age ;  and  the  return  was,  that  he  held  him  as  of  20th  January 
a  soldier  in  the  army  of  the  United  States,  under  an  enlist-  ij8tm'en°tot 'mi-" 
ment  of  the  20th  of  September  1813.  nors :  »"d  lf  .t,1,'e 

f  minor  h--s  neither 

The  facts  were,  that  the   minor  at  the  time  of  his  enlist- father,  muter  nor 
ment  had  neither  father,  master,  nor  guardian,  but  a  mother;  coii'lenHs  ncUs- 

and  he  had  enlisted  without  her  consent.  wry  to  his  en- 

listment. 

(«)  1  Smith's  Lnv»  65. 


256  CASES  IN  THE  SUPREME  COURT 

1814.  PER  CURIAM.  By  the  act  of  Congress  of  20th  January 

COMMON-     1813,  no  person  under  the  age  of  twenty-one,  shall  be  enlist- 
\VEALTH     ed  or  held  in  the  service  of  the  United  States,  without  the 
"V'  consent  in  writing  of  his  parent,  guardian,  or  master,  first 

LALLAN.  ^ad  &nci  Obtamecjt  The  mother  is  a  parent  within  that  act, 
and  her  consent  is  necessary.  He  must  therefore  be  dis- 
charged. The  same  has  been  decided  by  the  Chief  Justice 
at  his  chambers,  and  by  the  District  Judge  of  Pennsylvania. 


SPARHAWK  and  others  against  BROOME. 

It  a  bankrupt,  T^HIS  was  an  action  against  the  defendant  as  the  indor- 
between  the  date    J.  ser  of  two  promissory  notes,  one  dated  the  5th  of  Feb~ 

of  his  commission  r  J  ' 

and  his  certificate  ruary  1803,  for  1250  dollars,  drawn  by  Andrew  Hadfeg 
dorse" a^promis-" ^  Co.  payable  to  the  order  of  Peter  Lohra,  ninety  days 
•  sory  note,  he  is  after  <]ate  and  the  other  dated  the  9th  of  February  1803, 

liable  to  an  action 

upon  the  note  by  for  1250  dollars  5O  cents,  drawn  by  the  same  persons,  and 
\JhetberuTe'  payable  to  the  same  order,  and  at  the  same  time  as  the 
bankrupt  borrow-  first>  Qn  the  day  of  their  date,  both  the  notes  were  indorsed 

ed  it  tor  his  own  * 

accommodation  by  Lohra  and  by  the  defendant,  who  at  the  time  of  his  in- 
it"  an^whether*  dorsement  received  value  from  his  indorsee.  A  commission 
the  note  became  of  bankruptcy  under  the  act  of  Congress,  was  issued  against 
Ws  assignees  or  the  defendant  on  the  7th  of  April  1802,  and  his  certificate  of 
dl//wenw,that  a discharge  was  signed  by  the  judge  on  the  4th  of  March  1803. 
note  which  a  The  cause  was  tried  before  Yeates  T«  at  a  Nisi  Prius  in 

bankrupt  acquires  . 

between  his  com-  January  last,  when  it  was  agreed  that  a  verdict  should 
ScSe"  becomes™ "be  entered  for  the  plaintiffs  for  the  sum  in  controversy,  sub- 
i he  property  of  ;ect  to  the  opinion  of  the  Court,  whether  upon  the  above 

his  assignees,  un-'  -11 

less  it  is  lent  to     tacts  they  were  entitled  to  recover. 

Li  in  as  an  accom- 
modation* 

N.  Chauncey  and  Chauncey  for  the  plaintiffs  :  1 .  The 
assignment  of  the  notes  must  be  taken  to  have  been  legal, 
and  to  have  transferred  the  property  as  in  a  common  case. 
2.  Whether  legal  or  not,  the  defendant  is  liable  upon  his 
indorsement. 

1>  The  objection  is,  that  the  defendant  was  an  uncertifi- 
cated  bankrupt  at  the  time  of  indorsing,  and  could  have 
had  no  property  in  the  notes.  The  answer  is,  that  he  might 
transfer  the  notes  without  having  any  property.  He  might 
have  been  the  agent  of  the  drawers,  and  if  so,  the  property 


OF  PENNSYLVANIA.  257 

did  not  vest  in  his  assignees  ;   Cooper's  Bank.  Law  331.;  or        1814. 
they  might  have  been  lent  to  him  as  accommodation,  and   SPAR  HAWK 
then   his  assignees  took  nothing.     Arden  v.    Watkins  (a),        et  al. 
Wallis  v.  Hardy,  (£).     Every  intendment  jnust  be  made,  in  Vt 

the  absence  of  proof  to  the  contrary,  to  support  so  just  a  B 
demand.  Even  if  the  notes  were  the  fruits  of  the  defendant's 
own  industry,  acquired  between  the  commission  and  certifi- 
cate, his  assigness  were  not  entitled.  The  act  says  "if  any 
"  real  or  personal  estate  shall  descend,  revert  to,  or  become 
"vested"  in  the  bankrupt  before  the  certificate,  it  shall  be 
vested  in  the  commissioners,  and  be  assigned  by  them. 
5  U.  S.  Laws  77.  sec.  50.  Act  of  4th  April  1800.  The  13 
EViz.  c.  7.  *•  11.,  says  if  the  bankrupt  shall  "  at  any  time 
"  after,  purchase"  any  lands  goods  or  chattels,  or  if  they  shall 
"descend,  revert,  or  by  any  means  come  to  him."  The  differ- 
ence in  the  terms  is  striking,  and  shews  that  congress  intend- 
ed to  include  such  only  as  came  to  the  bankrupt  by  opera- 
tion of  law.  Even  in  England  the  assignees  are  not  entitled 
to  money  aquired  by  the  personal  labour  of  the  bankrupt ; 
Chippendale  v.  Tomlinson  (c),  Silk  v.  Osborn  (</),  Evans  v. 
Brown  (e)  :  and  when  the  assignees  do  not  interfere,  and 
that  is  the  present  case,  he  may  maintain  trover  for  goods 
acquired  between  his  bankruptcy  and  certificate,  although 
he  may  be  ultimately  accountable  to  them.  His  title  is  good 
against  all  but  his  assignees.  Webber  v.  Fox  (y),  Fowler  v. 
Down  (£•).  He  cannot  deny  it,  after  having  asserted  it. 

2.  But  it  is  not  necessary  that  the  present  holder  should 
have  had  the  property  so  transferred  to  him,  that  he  might 
recover  against  the  drawer.  Though  the  notes  be  illegally 
assigned,  the  indorser  is  liable  on  his  indorsement.  An  in- 
dorsement is  a  new  contract,  equivalent  to  drawing  a  new 
note.  It  binds  him  though  he  has  no  right  to  make  it,  though 
the  note  be  forgedj  though  it  be  stolen,  though  the  holder 
cannot  sue  the  drawer,  and  although  the  legal  owner  may 
have  a  right  to  the  possession  of  it  against  the  actual  one. 
Slacum  v.  Pomery  (fi),  Hill  v.  Leruis  (z),  Harry  v.  Perrit 
(/£),  Hodges  v.  Steward  (/),  Lambert  v.  Pack  (m),  Hcylyn  v. 

(a)  3  East  317.  (e)  1  Esp.  107.  (*)  1  Salk.  132. 

(A)  1  Camfb.  45.  (/)  7  D.  &  E.  391.  (k)  1  Salk.  133. 

(c)  1  Cook.  B.  L.  4G2.  (  g)  1  Bos.  £4  Pnl.  44.  (/)  1  Salk.  125. 

(rf)  1  Esp.  140.  (/»)  6  Cranch  224.  (m)  1  Salk.  127 

VOL.  VI.  2  K 


258 


CASES  IN  THE  SUPREME  COURT 


1814-        Adamson  (a),  Smalhvood  v.  Vernon  (£),  Ballingalls  v.  Glo&- 


SPARHAWK    ter  (c),  Chitty,  91.  107,   108.,  Jossel  v.  Ames  (</),  Russel 
et  al.        v.    Langstajf  (c),    Hay  ley   v.    Zawe   (./)»    Critchloiv    v. 

^    v"  Parry  (V). 

BROOME. 

Binney  and  Hofkinsonconira.  The  question  is  not  whether 
in  some  form  the  plaintiffs  might  not  recover,  but  whether 
they  can  in  this  form,  where  they  must  come  within  the 
alltgata  of  the  declaration,  namely,  that  by  the  defendant's 
indorsement  and  delivery,  the  plaintiffs  became  entitled  to 
receive  the  amount  of  the  notes  from  the  drawers,  and  that 
upon  their  default,  the  defendant  became  liable.  If  the  plain- 
tiffs had  no  right  to  demand,  the  drawers  were  not  in 
default,  and  the  indorser  as  such  not  bound. 

There  is  no  difference  between  the  act  of  congress  and 
the  British  statute.  More  comprehensive  terms  cannot  be 
used  than  descend,  revert,  or  be  vested  in.  The  latter  phrase 
implies  every  species  of  acquisition. 

These  notes  were  then  under  the  general  rule  the  pro- 
perty of  his  assignees.  If  they  were  not  beneficially  the  pro- 
perty of  the  bankrupt,  it  is  an  exception  which  must  be 
shewn  by  the  plaintiffs ;  it  cannot  be  presumed  without  con- 
verting the  exception  into  the  rule.  They  were  the  property 
of  his  assignees  absolutely,  being  vested  in  them  by  the 
50th  section  of  the  bankrupt  law.  The  rule  is,  that  an  un- 
certificated  bankrupt  can  acquire  property  only  for  the  benefit 
of  his  creditors  under  the  commission,  except  when  the 
assignees  preclude  themselves  from  claiming,  by  permitting 
him  to  trade,  Everett  v.  Backhouse  (A),  Evans  v.  Mann  (/), 
Troughton  v.  Gitley  (£)  ;  and  no  injury  is  done  to  the 
plaintiffs,  because  they  were  bound  to  know  the  defendant 
was  a  bankrupt,  and  could  acquire  and  pass  no  property. 
Hitchcox  v.  Sedgwick  (/),  Ex  parte  Proudfoot  (m).  The 
cases  in  which  he  has  been  permitted  to  sue,  because  his 
assignees  did  not  interfere,  are  where  they  have  known 
of  his  acts,  and  permitted  them.  That  is  not  the  present 
case. 

The  notes  being  the  property  of  his  assignees,   the    in- 


(n)  2  Kurr.  674. 
(A)  1  Str.  478. 
(c)  3  East  482. 
(r/)  3  Mass.  274. 


(*)  JJoutf.  514. 
(/)  2  Atk.  181. 
(.§•)  2  Campb.  182. 
(/>)  10  Ves.  09. 


(0  I  Coot.  J9.  L.  55: 
(£)  Jhnbler  63Q. 
(I)  2  Vern,  156. 
(w)  1  Atk.  ^252. 


OF  PENNSYLVANIA. 


259 


et  al. 

v. 
BROOME. 


dorsement  was  void,  and  there  was  no  liability  of  the  bank-  1814. 
rupt  upon  it.  In  Toms  v.  Mylton  (a),  the  bankrupt  committed  SPARHAWK 
an  act  of  bankruptcy  in  January  1724,  and  the  petition- 
ing creditor's  debt  was  a  note  drawn  in  1725.  The  commis- 
sion was  void.  A  simple  contract  before  bankruptcy,  is  not 
extinguished  by  a  bond  given  afterwards.  Ambrose  v.  C/en- 
don  (£).  The  indorsement  gives  no  remedy  against  the 
drawer,  and  therefore  they  cannot  recover  against  the  de- 
fendant on  the  drawer's  default.  Pinkerton  v.  Adams  (c),  is 
in  point.  The  bankrupt  indorsed  an  accepted  bill  before  his 
certificate,  and  the  acceptors  were  under  the  general  issue 
permitted  to  object  it  against  the  holder.  Chitty  94.,  Smith 
v.  Pickering  (</),  is  the  same  doctrine.  Barlow  v.  Bishop 
(e),  has  a  strong  analogy.  It  was  the  case  of  a  note  made  to 
a  married  woman,  with  intent  that  she  should  indorse  it 
and  save  herself  from  suit ;  and  it  was  held  that  nothing 
passed  by  her  indorsement,  because  the  note  vested  in  het 
husband  on  delivery  to  her.  This  case  is  not  one  in  which 
title  does  or  does  not  pass  to  the  assignees  accordingly  as 
they  assent  or  dissent,  but  one  in  which  it  instantly  vests 
in  them,  and  the  bankrupt  has  nothing  to  pass  away.  It  is 
one  in  which  the  defendants  liability  under  the  indorsement 
is  derivative  if  at  all ;  and  yet  the  preceding  parties  are 
clearly  not  answerable  to  the  holder,  therefore  the  defend- 
ant is  not  derivatively  liable.  If  the  bankrupt  has  received 
value,  he  is  liable  in  an  action  for  money  had  and  received. 

TILGHMAN  C.  J.  This  is  an  action  on  two  promissory 
notes,  one  dated  5th  February  1803,  for  1250  dollars  drawn 
by  Andrew  Hadfeg  £s?  Co.,  payable  to  the  order  of  Peter 
Lohra  ninety  days  after  dafe,  the  other  dated  9th  February 
1803,  for  125O  dollars  5O  cents,  drawn  by  the  same  person, 
and  payable  to  the  order  of  the  said  Lohra,  ninety  days  after 
date.  They  were  both  indorsed  by  Lohra,  and  by  the  defend- 
ant, who  at  the  time  of  his  indorsement,  received  full  value 
from  his  indorsee.  A  commission  of  bankrupt  under  the  law 
of  the  United  States,  was  issued  against  the  defendant  the 
7th  April  18O2,  by  virtue  of  which  he  was  afterwards  de- 
clared to  be  a  bankrupt;  but  his  certificate  of  discharge  was 
not  signed  by  the  judge  until  the  4th  March  18O3.  It  is  con- 


(a)  2  Stra.  744. 
(A)  2  Stra.  1042. 


(c)  QEsp.  JV'.P.  611. 
(rf)  1  Cook.  B.L.  268. 


(e)  1  ,Ea«432. 


260 


CASES  IN  THE  SUPREME  COURT 


1814. 


SPAR  HAWK 
etal. 

v. 
BHOOME. 


tended  on  the  part  of  the  defendant,  that  the  notes  being  the. 
Pr°Pert>'  °f  his  assignees,  nothing  passed  by  his  indorse- 
ment, and  therefore  he  is  not  responsible.  In  the  mouth  of 
a  man  who  received  value  for  his  indorsement,  this  to  be 
sure  is  a  most  ungracious  defence.  It  is  material  that  the 
assignees  have  never  claimed  these  notes,  nor  do  the)  take 
any  interest  in  this  action.  Every  possible  intendment  should 
therefore  be  made  in  favour  of  the  plaintiffs.  Whether  the 
bankrupt  or  his  assignees  are  entitled  to  property  acquired 
by  him  after  his  bankruptcy,  but  before  the  signing  of  his 
certificate,  is  a  point  which  has  been  fully  argued.  I  incline 
to  the  opinion  that  the  assignees  are  entitled  to  such  pro- 
perty. It  is  enacted,  in  the  50th  section  of  the  act  of  con- 
gress, that  "  if  any  estate  real  or  personal,  shall  descend, 
"  revert  to,  or  become  vested  in  any  person,  after  he  or  she 
"  shall  be  declared  a  bankrupt,  and  before  he  or  she  shall 
"  obtain  a  certificate  signed  by  the  judge  as  aforesaid, 
"  all  such  estate  shall  by  virtue  of  this  act  be  vested  in  the 
"  said  commissioners,  and  shall  be  by  them  assigned  &c." 
The  words  are  sufficiently  comprehensive,  and  as  compre- 
hensive I  think  as  those  of  the  English  statute  of  13  Eliz. 
c.  7.  sec.  11,  though  somewhat  different.  But  no  property 
passes  either*under  the  statute  or  the  act  of  congress,  but 
such  as  the  bankrupt  has  a  beneficial  interest  in.  Now  what 
interest  had  the  bankrupt  in  these  notes  at  the  moment  be- 
fore he  indorsed  them  ?  As  there  is  no  evidence  of  his  hav- 
ing applied  any  part  of  his  estate,  or  paid  any  valuable 
consideration  whatever  for  them,  I  shall  suppose  that  they 
were  drawn  and  indorsed  for  his  accommodation,  in  order 
to  enable  him  to  raise  money,  in  which  case,  neither  he  nor 
his  assignees  under  the  commission  could  have  supported  an 
action  against  the  drawer  or  first  indorser.  This  was  decided 
in  Arden  v.  Watkins,  3  East  317,  where  an  uncertificated 
bankrupt  drew  a  bill  payable  to  himself,  and  indorsed  it.  It 
was  held  that  the  indorsee  might  maintain  an  action  against 
the  acceptor,  because  the  bill  did  not  vest  in  the  assignees 
under  the  commission,  no  value  having  passed  from  the 
drawer  to  the  acceptor.  The  case  of  Pinkerton  v.  Adams 
was  cited  from  2  Esp.  Rep.  611,  to  shew  that  the  indorsee 
of  the  bankrupt  could  not  recover  against  the  acceptor.  But 
Lord  Ellenborough,  remarking  on  that  case  in  Arden  v.  Wat- 
kins,  says,  that  there  "  the  bankrupt  had  a  property  in  the 


OF  PENNSYLVANIA.  261 

"  bill  before  his  bankruptcy."     If  so  it  would  clearly  pass        1814. 
under  the  commission.     In  this  view  of  the  case  the  law  is    SPAR  HAWK 
with  the  plaintiff.     But  even  if  the  property  of  the  bill  had        et  al. 

been  vested  in  the  assignees,  I  am  not  satisfied  that  the  plain-  v' 

RROOME 
tiffs'  action  would    have    been    barred.     The    defendant's 

counsel  have  laboured  to  shew  the  property  to  be  in  the 
assignees,  taking  for  granted  that  if  they  succeeded,  the 
plaintiffs'  action  was  gone*  But  they  have  cited  no  case  which 
comes  up  to  their  position.  Justice  is  against  it,  and  there 
is  a  strong  principle  in  their  way.  It  is  not  necessary  that 
the  indorser  should  have  such  a  property  in  the  note  as 
would  enable  him  to  recover  against  the  drawer.  Every 
indorser  stands  as  to  his  indorsee  in  the  light  of  a  new 
drawer.  He  is  liable  although  the  note  be  forged,  and  so 
•would  he  be,  I  apprehend,  if  he  had  stolen  it  himself,  by 
which  he  could  acquire  no  legal  property.  It  appears  to  me 
that  a  man  who  has  received  value  for  his  indorsement, 
should  be  estopped  from  impeaching  his  own  property. 
Whether  the  assignees  under  the  commission  might  recover 
against  the  plaintiff  in  an  action  of  trover  for  these  notes,  is 
another  question.  If  they  were  accommodation  notes,  they 
could  not.  If  they  had  been  purchased  by  the  bankrupt  with 
money  raised  from  his  own  estate  and  fraudulently  concealed, 
perhaps  they  might ;  but  that  would  not  be  at  all  inconsist- 
ent with  the  plaintiffs'  recovery  in  this  action.  I  am  therefore 
of  opinion  that  judgment  should  be  entered  for  the  plaintiffs. 

YEATES  J.  I  concur  in  the  opinion  which  has  been  de- 
livered by  the  Chief  Justice.  The  contest  here  is  not  be- 
tween the  plaintiffs  and  the  assignees,  who  are  interested 
for  the  general  creditors,  but  between  the  plaintiffs  and  the 
bankrupt  himself,  who  has  received  value,  who  endeavours 
to  avoid  his  liability  as  indorser  of  the  notes,  upon  the 
ground  of  his  having  committed  a  fraudulent  act. 

As  between  the  indorsee  and  the  drawer  of  a  promissory 
note,  it  is  incumbent  on  the  former  to  prove  a  full  and  com- 
plete right  to  the  note ;  but  the  same  is  not  necessary  in  a 
suit  by  the  indorsee  against  the  indorser ;  for  as  between 
them,  it  is  an  entire  new  contract,  guaranteeing  the  payment 
of  the  note  by  the  drawer,  when  it  comes  to  maturity,  and 
the  handwriting  of  the  indorser,  and  due  notice  of  the  non- 
payment of  the  note,  need  only  be  proved.  The  decisions  on 


262 


CASES  IN  THE  SUPREME  COURT 


1814. 


the  responsibility  of  indorsers  of  notes  given  by  infants,  or 
which  even  have  been  proved  to  be  forged,  furnish  striking 
illustrations  of  the  correctness  of  the  principle. 

It  is  wholly  unnecessary  to  anticipate  at  this  time, 
whether,  if  the  bankrupt  had  a  beneficial  interest  in  these 
notes,  his  assignees  might  not  recover  from  the  plaintiffs  in 
trover,  or  the  amount  of  the  monies  hereafter  received  from 
the  defendant.  It  is  sufficient  to  say,  that  the  liability  of  the 
defendant,  not  attaching  until  above  two  months  after  the 
date  of  his  certificate  of  conformity,  the  debt  could  not  be 
proved  under  the  commission,  nor  was  barred  thereby,  j 
am  therefore  of  opinion,  that  judgment  be  entered  for  the 
plaintiffs. 


BRACKENRIDGE  J.  concurred. 


Judgment  for  plaintiffs. 


6b  262] 


Philadelphia, 

Monday,  SMITH  and  another  against  MARTIN. 

April  4. 

ven  by'stress  of "  T^HIS  cause  was  tried  before  the  Chief  Justice  at  a  Nisi 
veather  into  a       JL  Prius  in  February  last,  when  a  verdict  was  given  for  the 
defendant;  and  now,  upon  a  motion  by  the  plaintiffs  for  a 
rule  to  shew  cause  why  there  should  not  be  a  new  trial,  his 
upon  the  master,  Honour  reported  the  case  to  be  as  follows  : 

•whose  duty  His  / 

to  take  proper          1  he  action  was  brought  against  the  defendant  as  master 
^ods0fasaredama.of  the  shiP  Volunteer,  for  not  delivering  to  the  plaintiffs  or 

ged.orareofa     their  assigns  at  Philadelphia.  230  barrels  of  refined  salt- 
perishable  nature,  *  .  .     . 
he  has  power,      petre,  agreeably  to  a  bill  or  lading  signed  by  him  in  London 

i  the  21st  of  October  1808,  and  for  unlawfully  selling  the 


port  out  of  her 
course,  the 
charge  of  the 
cargo  devolves 


ship,  to  sell.  But  same  at  St.  fhomas.    The  invoice  price  of  the  saltpetre  was 

those  which  are  *     .  ..  *          _ 

in  good  condition,  1067/.  1*.  4,d.  sterling.  It  was  valued  m  a  policy  by  the  Fhoe,- 


nix  Insurance  Company  at  85OO  dollars,  and  for  their  use 

right  to  sell  with- the  present  action  was  brought,  they  having  paid  the  plain- 
out  the  order  ot  r 
the  owner, to       tiffs  a  total  loss,  and  received  an  assignment. 

to'dTe'ittimedSllte     ^ne  vessel  by  great  stress  of  weather,  and  in  consequence 
information,  if     of  much  injury  from  storms  and  tempests,  was  obliged  to 

contrary  to  this  J.     J         .  . 

duty  he  sells,  he  take  refuge  in  the  island  or  ot.   l/ionias,  where  she  arrived 
an~  in  the  month  of  February  1809.    Surveys  were  held  upon 
ship  and  cargo  in  the  same  month,  by  which  the  former 


OF  PENNSYLVANIA. 


263 


was  condemned  as  unseaworthy,  and  the  latter,  expressly 
including  the  saltpetre,  was  stated  to  be  generally  damaged " 
by  sea  water.  It  was  therefore  thought  advisable  to  sell ; 
and  accordingly  the  entire  cargo  was  sold  at  public  auction 
between  the  3d  and  16th  of  March,  the  saltpetre  producing 
very  little.  There  was  no  supercargo  on  board,  and  the  de- 
fendant applied  for  advice  to  Messrs.  Badderack  a  house  of 
the  first  respectability  in  the  island.  The  cargo,  excepting 
the  saltpetre  and  some  books,  sold  pretty  well. 

The  plaintiffs,  and  others  who  were  owners  of  parts  of 
the  cargo,  having  heard  of  the  ship's  arrival  at  St.  Thomas, 
despatched  y.  W»  Peril  as  their  special  agent,  with  full 
powers  to  act  as  might  be  necessary.  He  was  intrusted  by 
the  plaintiffs  to  bring  the  saltpetre  to  Philadelphia,  unless  it 
should  be  damaged,  or  would  bring  30  cents  a  pound  on  the 
spot.  When  he  arrived  at  St.  Thomas,  which  was  in  April, 
he  found  that  the  entire  cargo  had  been  sold,  and  that  the 
defendant,  having  settled  his  accounts  with  Messrs.  Badde- 
rack, was  about  to  depart  to  the  United  States,  with  bills  of 
exchange  to  the  amount  of  the  net  proceeds  ;  and  either  by 
persuasion,  or  the  menace  of  a  suit,  he  prevailed  on  the  de- 
fendant to  remit  the  bills  to  Messrs.  Guest  and  Bancker  of 
Philadelphia,  accompanied  by  a  letter,  in  which  he  made 
an  appropriation  of  different  sums  to  different  persons,  ac- 
cording to  their  respective  interests  iu  the  cargo.  At  the 
same  time,  Mr.  Peril  as  the  attorney  of  those  persons,  gave 
a  written  engagement  to  the  defendant,  by  which  it  was 
stipulated  that  in  consequence  of  the  whole  proceeds  hav- 
ing been  remitted,  his  constituents  should  pay  to  the  defen- 
dant the  amount  of  his  lawful  claim  for  freight,  services  and 
expenses. 

The  evidence  as  to  the  damage  done  to  the  saltpetre, 
was  rather  contradictory.  Mr.  Peril  swore  that  the  survey- 
ors of  the  cargo  were  men  of  the  first  respectability  ;  that 
he  saw  part  of  the  saltpetre  which  he  considered  to  be 
damaged,  but  he  did  not  examine  it  very  particularly  ;  that 
he  did  not  know  that  he  should  have  sold  it,  as  it  was  in  a 
condition  in  which  it  might  have  been  brought  to  Philadel- 
phia ;  that  it  was  in  bulk  when  he  saw  it.  Saltpetre,  he  stated, 
is  not  a  perishable  article,  the  part  not  damaged  remaining 
good  as  before.  That  he  did  not  know  any  vessel  that  the 
defendant  could  have  got  to  come  to  Philadelphia,  the  vessels 


1814. 


SMITH 

etal. 

v. 

MARTIN 


264 


CASES  IN  THE  SUPREME  COURT 


1814. 


SMITH 
etal. 

& 
MARTIN. 


there  being  embargo  breakers.  He  did  not  consider  himself 
"as  finishing  the  business  with  the  defendant,  at  St.  Thomas, 
but  as  leaving  it  to  be  concluded  at  home.  Shortly  after  his 
arrival  in  the  island  he  wrote  to  his  principals,  that  the  con- 
duct of  the  defendant  appeared  to  have  been  correct  and 
judicious,  and  so  it  then  seemed  to  him.  On  the  other  hand 
it  appeared  that  the  saltpetre,  which  was  sold  for  7  dollars 
the  keg,  was  exposed  in  bulk  to  the  sun  and  air;  that  it  was 
than  repacked,  when  about  10  kegs  were  lost  out  of  the  230, 
and  the  residue  proved  good  and  merchantable,  and  was 
sold  for  25  dollars  the  keg. 

The  plaintiffs'  counsel  contended  before  the  jury,  that  the 
sale  was  unlawful ;  because,  as  the  article  was  not  perishable, 
as  the  damage  it  had  received  was  little  or  nothing,  and  as 
the  master  did  not  want  money  to  repair  the  ship,  she  being 
condemned  and  sold,  his  duty  was  to  store  the  saltpetre, 
and  give  notice  to  the  owners.  He  had  therefore  made  him- 
self liable  by  his  misconduct.  They  relied  upon  the  follow- 
ing authorities.  Abbot  on  Ship.  158.,  2  Condifs  Marsh.  171 
note.  The  Gratitudine  (a),  Vanomeron  v.  Do-wick  (6),  Hunter 
v.  Prinsep.  (c). 

The  defendant's  counsel  contended  that  the  master  had 
acted  like  a  prudent  agent,  and  within  the  scope  of  his 
authority  ;  that  the  saltpetre  was  generally  damaged,  and 
therefore  within  the  plaintiffs'  rule  he  had  a  right  to  sell ; 
but  that  independent  of  this,  as  the  voyage  was  fairly  broken 
up,  and  the  cargo  was  miscellaneous  and  principally  damag- 
ed, the  master  was  not  bound  to  preserve  the  particular  parts 
not  damaged,  but  might  sell  the  whole.  The  breaking  up  of 
the  voyage  made  the  difference.  For  this  they  cited  Mills 
v.  Fletcher  (</),  2  Marsh.  615.,  1  Marsh.  170.,  Manning  v. 
Newnham  (e),  and  also  relied  on  the  plaintiffs'  authorities. 

They  also  contended  that  the  plaintiffs  were  barred  from 
recovery  by  the  act  of  their  agent,  in  relation  to  the  bills, 
and  by  their  own  receipt  of  the  proceeds  of  the  saltpetre. 

The  Chief  Justice  reserved  the  last  point,  instructing  the 
jury  to  consider  it  as  decided  in  favour  of  the  plaintiffs. 
As  to  the  main  question,  he  instructed  them  in  the  law, 
as  it  is  hereafter  stated  in  his  opinion ;  and  concluded  by 
saying,  that  if  the  saltpetre  was  in  their  opinion  so  much 


(a)  3  Rob.  196. 
(6)  2  Campb.  42. 


(c)  10  East  378. 
(f/)  Von*.  219. 


(<?)  2  Marsh. 


OF  PENNSYLVANIA.  265 

damaged  as  to  make  a  sale  expedient,  they  should  find  for  1814. 

the  defendant,  otherwise  for  the  plaintiffs.  SMITH 

et  al. 

The   motion  for  a  rule  to  shew  cause,  was  argued  by  *-'• 

Halloweland  Rcrwle  for  the  plaintiffs,   and  by  Phillips  and  MAUTIK- 
Dallas  for  the  defendant ;  the  single  point  being  whether  the 
verdict  was  against  evidence. 

TILGHMAN  C.  J.  after  stating  the  case  particularly,  de- 
livered his  opinion  as  follows : 

I  told  the  jury  that  the  ship  having  been  driven  out  of 
her  course  by  stress  of  weather,  the  charge  of  the  cargo  de- 
volved upon  the  master,  whose  duty  it  was  to  take  proper 
care  of  it.  In  such  case,  the  master  has  power  to  sell  goods 
which  are  damaged  or  of  a  perishable  nature.  But  those 
which  are  in  good  condition  and  not  perishable,  he  has  no 
right  to  sell  without  the  order  of  the  owners,  to  whom  he 
is  bound  to  give  immediate  information.  This  is  a  principle, 
which  it  is  of  great  importance  to  support,  because  it  would 
be  of  ruinous  consequence,  if  the  captain  might  at  his  plea- 
sure sacrifice  valuable  goods,  by  exposing  them  to  sale  at 
an  improper  market,  especially  as  there  will  never  be  want- 
ing persons,  whose  interest  it  is  to  advise  a  sale,  by  which 
they  will  be  sure  to  reap  considerable  profit.  But  whether 
the  saltpetre  in  this  case,  was  so  much  damaged  as  to  ren- 
der a  sale  expedient,  was  a  matter  which  I  submitted  to 
the  jury,  as  the  turning  point  of  the  cause.  That  it  was 
damaged  is  certain.  So  say  all  the  witnesses,  both  for  the 
plaintiffs  and  defendant.  It  is  certain  also,  that  after  being 
thrown  into  bulk  and  exposed  to  the  sun  and  air,  about  ten 
kegs  out  of  the  230  were  lost,  and  the  remainder  proved 
good  and  merchantable.  But  the  trouble  of  restoring  it  to 
good  condition,  was  taken  by  the  purchaser  at  St.  Thomas^ 
who  resold  it  at  a  great  advance.  There  is  every  reason  to 
suppose,  that  the  defendant  acted  fairly  and  to  the  best  of 
his  judgment,  aided  by  the  advice  of  respectable  persons 
whom  he  consulted.  It  is  of  some  consequence  too,  that 
Mr.  Perit  wrote  to  his  constituents  after  his  arrival  at  St. 
Thomas^  that  the  conduct  of  the  defendant  had  been  correct 
and  judicious.  I  have  no  doubt,  but  it  would  have  been  more 
for  the  plaintiffs'  interest,  if  the  saltpetre  had  not  been  sold ; 
but  it  must  be  confessed  that  the  defendant  stood  in  a  criti-. 

VOL.  VI.  2  L 


266 


CASES  IN  THE  SUPREME  COURT 


1814. 


SMITH 
et  al. 

v. 
MARTIN. 


cal  situation ;  for  if  he  had  stored  it,  after  the  report  of  the 
surveyors,  and  the  opinion  of  other  intelligent  persons  in 
favour  of  a  sale,  and  then  it  had  been  lost  by  fire  or  other 
accident,  he  might  have  found  it  difficult  to  justify  his  con- 
duct. At  any  rate  the  jury  having  found,  that  the  state  of  the 
saltpetre  rendered  a  sale  expedient,  it  is  not  one  of  those 
cases  in  which  they  were  so  clearly  mistaken  as  to  induce 
the  Court  to  order  a  new  trial.  Whether  the  acceptance  of 
the  proceeds  of  sale  by  the  plaintiffs  was  such  an  affirmance 
of  the  defendant's  conduct  as  would  be  a  bar  to  this  action, 
even  supposing  the  sale  to  have  been  illegally  made,  it  is 
unnecessary  to  determine.  I  am  of  opinion,  that  the  plaintiffs' 
motion  for  a  rule  to  shew  cause,  should  not  be  granted. 

YEATES  J.  and  BRACKENRIDGE  J.  concurred. 

Rule  refused. 


o 


The  Commonwealth  for  the  use  of  the  United  States 
against  LEWIS. 


was  an  action  of  debt  upon  an  administration  bond, 
jn  which  the  defendant  was  surety  for  the  administra- 


Philadelphia, 
Monday, 
April  4. 

A  debt  due  to 
the  United  States 
by  a  deceased  re- 
entitled  to  priori-  tors  of  Sharpe  Delany.  The  case  was  tried  before  Teates  J. 
ty  of  payment       t     J^jsi  Prius  in  December  last,  when  an  arrangement  was 

from  hisadmims- 

trators  under  the  made  to  enter  a  verdict  for  the  penalty  of  the  bond,  subject 

law  of  this  com-  ,  ,  .    ,  r       i  •    i 

monweaith,  whe-  to  an  agreement,  the  only  material  part  ot  which  was,  that 
the  judge  should  charge  the  jury  whether  the  United  States 
were  entitled  to  priority  by  the  act  of  3d  March.  1797,  under 
the  facts  in  evidence,  which  facts  were  to  be  stated  by  the 
judge,  and  were  to  be  considered  as  a  special  verdict,  on 

right  to  claim  a    which  either  party  might  apply  to  the  Court  in  bank;  and 

preference  out  of    .       TT    .       ,   «  .  ...  •  r 

the  estate  of  a      the  United  states  were  to  be  at  liberty  in  case  ot  necessity, 
public  debtor  for  t    remove  the  cause  to  the  Supreme  Court  of  the  United 

debts  due  to  the 

United  States  ; 

and  by  the  act  of  3d  March  1797  they  have  constitutionally  claimed  it  as  against  living  debtors  for 

all  debts  contracted  thereafter,  and  as  against  deceased  debtors  whether  contracted  before  or  after 

that  law. 

Upon  all  balances  due  by  defaulting  revenue  officers,  the  United  States  are  entitled  to  interest 
from  the  time  of  receiving  the  money,  although  the  secretary  ot  the  treasury  has  not  issued  his  war- 
rant ordering  the  payment  of  the  balance  into  the  treasury.  In  practice,  payments  are  made  with- 
out such  warrant ;  and  the  intention  of  the  act  of  2d  September  1789  in  requiring  it,  was  that  the 
secretary  might  be  advised  of  the  proceedings  of  the  trtasurtr.  It  is  a  matter  between  the  officers 
of  government.  Payments  without  v,  maut  are  good. 


after  the  acu 
^March  1797*. 


OF  PENNSYLVANIA. 


States,  agreeably  to  the  act  of  congress  of  24th  September 
1789. 

His  honour  did  accordingly  charge  the  jury  that  the  Uni- 
ted States  were  entitled  to  a  priority,  and  he  now  reported  his 
statement  of  facts  to  the  Court,  according  to  the  agreement. 

Sharpe  Delany  was  appointed  collector  of  the  port  of 
Philadelphia,  and  gave  bond  on  the  7th  August  1789 ;  and  he 
went  out  of  office  on  the  3Oth  June  1798.  He  died  on  the 
13th  May  1799,  and  on  the  31st,  letters  of  administration 
were  taken  out  by  his  sons,  and  the  bond  in  question  given, 
with  Mr.  Lervis  as  their  surety.  On  the  2d  January  18O1, 
they  filed  an  inventory  of  the  personal  estate  amounting  to 
13,615  dollars  7O  cents. 

Under  the  laws  of  the  United  States,  and  in  the  regular 
course  of  official  transactions,  Sharpe  Delany' s  account  was 
settled  quarterly,  always  leaving  a  balance  real  or  apparent 
against  him.  After  his  decease,  his  administrators  rendered 
his  official  accounts  to  the  comptroller  of  the  treasury  j  and 
finally  on  the  16th  of  July  18O2,  a  general  and  final  settle- 
ment was  made  at  the  treasury,  ascertaining  a  balance  of 
67,821  dollars  31  cents,  to  have  been  due  from  him  to 
the  United  States  at  the  time  of  his  leaving  the  office.  The 
administrators  at  the  time  of  taking  out  the  letters  of  ad- 
ministration, had  full  notice  of  the  debt  due  to  the  United 
States,  and  they  never  accounted  for  the  assets  in  their 
hands. 

His  honour  in  addition  to  these  facts,  made  a  minute  detail 
of  many  others,  principally  to  shew  whether  Sharpe  Delany^s 
debt  was  contracted  before  or  after  the  act  of  3d  March 
1 797,  upon  which  however  he  expressed  no  opinion  to  the 
jury,  and  which  it  will  be  perceived  from  the  Court's  opinion 
are  not  material. 

Ratvle  and  Tilghman  for  the  defendant,  addressed  the 
Court  upon  two  points,  1.  The  priority  claimed  by  the 
United  States.  2.  The  question  of  interest. 

1.  The  act  of  3d  March  1797,  sec.  5.  provides,  that 
"  wherever  any  revenue  officer  or  other  person,  hereafter  be- 
"  coming  indebted  to  the  United  States  by  bond  or  other- 
"wise,  shall  become  insolvent,  or  where  the  estate  of  any 
"  deceased  debtor  in  the  hands  of  executors  or  administrators 


1814. 


COMMON- 
WEALTH 

v. 
LEWI*. 


268 


CASES  IN  THE  SUPREME  COURT 


1814. 


COMMON- 
WEALTH 

v. 
LEWIS. 


"  shall  be  insufficient  to  pay  all  the  debts  due  from  the  de- 
"  ceased,  the  debt  due  to  the  United  States  shall  be  first  paid." 
3  U.  S.  Laws  421.  In  the  case  of  living  debtors,  it  was  clear 
the  debt  must  be  contracted  after  the  law ;  and  although  they 
would  not  say  the  law  was  unconstitutional,  yet  as  it  would 
be  unjust  to  give  the  subsequent  clause  in  relation  to  de- 
ceased debtors  a  retrospective  effect,  and  would  make  it 
substantially  an  ex  post  facto  law,  that  consideration  should 
weigh  with  the  Court,  to  apply  the  law  throughout  to  subse- 
quent debts.  For  this  rule  of  construction  they  relied  on 
Dash  v.  Van  Kleeck  (a),  Ham  v.  M'Laws  (£),  Osborne  v. 
Huger  (c).  4  Inst.  330.  334,  335.,  Ploiud.  204.,  Co.  Lift. 
381.  a.  b.  In  Hydekopper's  Lessee  v.  Douglas  (<f),  the 
Supreme  Court  supplied  the  word  shall  to  affect  the  mean- 
ing of  the  law :  in  this  case  the  Court  should  supply  the 
word  such  before  deceased  debtor.  The  counsel  then  inves- 
tigated the  facts  to  shew  that  the  debt  was  due  before  the 
act.  They  argued  also  that  the  administrators  were  bound 
to  pay  the  intestate's  debts,  according  to  the  act  of  this  state 
of  19th  April  1794,  which  gives  no  preference  whatever  to 
the  United  States. 

2.  Interest  should  run  only  from  the  time  of  suit  brought. 
By  the  fourth  section  of  the  act  of  2d  September  1789, 
1  U.  S.  Laws  36,  all  receipts  for  monies  received  by  the  trea- 
surer, must  be  endorsed  upon  warrants  signed  by  the  secre- 
tary of  the  treasury,  without  which  warrant  so  signed,  no 
acknowledgment  for  money  received  into  the  public  treasury 
is  valid.  In  this  case  no  such  warrant  was  ever  issued,  and 
therefore  the  mon-y  could  not  be  paid  into  the  treasury. 
When  the  act  of  3d  March  1797  charges  interest  in  case  of 
suit  brought,  it  has  an  eye  to  personal  delinquency,  and  not 
to  the  case  of  administrators. 

Dallas  for  the  United  States. 

1.  According  to  the  facts  the  debt  was  contracted  before 
the  act  of  1797;  according  to  the  law  it  is  immaterial  whether 
it  was  or  not.  The  law  may  be  constitutionally  retrospective. 
If  ex  post  facto ,  it  is  not  so  in  that  sense  in  which  that  phrase 
is  used  in  our  constitutions,  where  it  has  reference  merely 
to  criminal  laws.  Calder  v.  Bull  (e).  The  act  takes  away 

(e)  3  Da.ll.  360. 


(o)  7  Johns  493. 
(b)  l£ay.Q3. 


(c)  1  Bay.  179. 

(d)  3  Crunch  66. 


OF  PENNSYLVANIA. 


269 


no  vested  right,  it  overthrows  no  actual  lien,  but  merely 
claims  what  every  state  has  occasionally  claimed,  a  prefer- 
ence for  its  own  debt.  Pennsylvania  has  gone  further,  by  giv- 
ing a  settlement  by  its  accounting  officers  the  effect  of  a 
judgment.  The  difference  in  the  act  between  the  preference 
in  the  case  of  living  and  a  deceased  debtor,  cannot  be  got- 
ten over.  As  to  the  first,  it  is  any  person  hereafter  becoming 
indebted ;  as  to  the  latter,  it  is  the  estate  of  any  deceased 
debtor.  Congress  have  adopted  a  qualification  of  time  as  to 
the  living  debtor,  and  in  the  next  sentence  have  rejected  it 
as  to  the  dead.  The  constitutionality  of  this  law  has  been 
asserted  by  the  Supreme  Court  of  the  United  States ;  and  if 
it  be  constitutional,  then  an  administrator  in  this  state  is 
bound  to  respect  the  priority,  because  the  condition  of  his 
bond  is,  that  he  shall  well  and  truly  administer  according 
to  law. 

2.  A  warrant  was  not  necessary  to  authorize  the  payment, 
nor  was  the  want  of  it  the  cause  of  the  omission  to  pay. 
Interest  is  therefore  payable,  according  to  the  act  of  1797, 
from  the  time  the  money  was  received  $  though  I  consent  to 
interest  from  the  time  of  Delany's  leaving  the  office.  The 
practice  as  to  the  warrant  is  this.  It  has  been  customary  for 
all  collectors  in  this  city,  and  for  the  district  attorney,  to 
make  payment  to  the  bank  of  the  United  States  without 
warrant.  When  money  is  paid  into  the  treasury,  the  secretary 
issues  his  warrant  ordering  it;  but  this  warrant  is  frequently 
issued  after  the  money  is  in  the  treasury.  It  is  called  a  co- 
vering warrant,  and  was  intended  to  keep  the  secretary  ac- 
quainted with  the  proceedings  of  the  treasurer.  This  war- 
rant is  always  kept  by  the  treasurer,  and  is  a  matter  which 
concerns  the  officers,  not  the  payer. 

TILGIIMAN  C.  J.  This  action  was  brought  on  the  bond 
to  the  Commonwealth  for  the  due  administration  of  the 
estate  of  Sharpe  Delany  deceased,  in  which  the  defendant 
was  security  for  the  administrators.  Sharpe  Delany  was  col- 
lector of  the  customs  for  the  port  of  Philadelphia,  and  died 
largely  indebted  to  the  United  States.  His  estate  was  une- 
qual to  the  payment  of  his  debts.  The  United  States  for 
whose  use  this  action  was  brought,  claim  a  priority  in  the 
administration  of  the  assets,  and  whether  they  are  entitled 


1814. 


COMMON- 
WEALTH 

v. 
LEWIS. 


270 


CASES  IN  THE  SUPREME  COURT 


1814. 


COMMON- 
WEALTH 

v. 
LEWIS. 


to  such  priority,  is  the  principal  point  in  dispute.  There  is  a 
*  second  question  respecting  interest. 

1.  It  was  first  of  all  contended  on  the  part  of  the  defen- 
dant, that  although  the  United  States  may  have  assumed  a 
priority  by  a  law  of  their  own,  yet  they  cannot  avail  them- 
selves of  it  in  a  suit  on  this  bond,  which  was  given  by  virtue 
of  an  act  of  assembly  of  this  Commonwealth,  in  which  the 
order  of  payment  of  debts  is  fixed  ;  and  no  preference  is 
given  to  the  United  States.  But  to  this  there  is  a  plain  an- 
swer. The  act  of  assembly  prescribes  the  form  of  the  bond, 
the  condition  of  which  is,  that  the  administrators  "  shall 
well  and  truly  administer  the  estate  according  to  law" 
The  question  then  is,  what  is  the  law  ?  Had  the  United 
States  a  right  to  legislate  on  the  subject,  and  have  they 
made  a  law  giving  themselves  a  preference  ?  If  these  ques- 
tions are  answered  in  the  affirmative,  then  according  to  law, 
the  United  States  are  entitled  to  a  preference,  and  the  con- 
dition of  the  bond  is  broken  unless  their  debt  is  first  paid. 
Although  it  was  thrown  out  in  the  course  of  the  argument, 
that  under  the  constitution  of  the  United  States,  congress 
had  no  power  to  assume  a  preference,  yet  no  reasons  were 
assigned  against  the  exercise  of  such  a  power.  Congress 
have  a  right  "  to  make  all  laws  which  shall  be  necessary 
"  and  proper  for  carrying  into  execution  the  several  powers 
"vested  in  them  by  the  constitution."  Art.  1.  sect.  8.  By 
the  same  article  and  section,  they  have  power  "  to  lay  and 
*'  collect  taxes,  duties,  impost  and  excises."  In  order  to  se- 
cure to  the  United  States  the  payment  of  money  received 
by  their  collectors,  it  has  been  thought  necessary  and  pro- 
per to  provide,  that  in  case  of  the  death  of  the  collector, 
without  leaving  estate  sufficient  for  the  payment  of  all"  his 
debts,  the  United  States  shall  be  first  paid.  Will  it  be  said 
that  there  was  no  necessity  for  this,  because  congress  may 
increase  their  revenue  at  pleasure,  so  as  to  make  good  any 
loss  occasioned  by  the  insolvency  of  collectors  ?  I  am  afraid 
that  it  would  be  impossible  for  the  government  to  exist,  if 
that  were  the  true  construction  of  the  constitution.  It  was 
impossible  to  enumerate  all  cases  of  necessity,  and  there- 
fore it  was  left  to  congress  to  judge  of  them;  and  their 
judgment  must  govern,  unless  it  should  be  so  exercised  as  to 
be  manifestly  and  flagrantly  in  breach  of  the  constitution.  If 


OF  PENNSYLVANIA. 

a  law  is  evidently  useful  in  carrying  into  effect  one  of  the 
powers  vested  in  congress,  we  must  not  be  over  critical  in" 
enquiring  into  the  degree  of  necessity.  Once  establish  the 
principle,  that  nothing  short  of  absolute  necessity  is  suffi- 
cient, and  the  whole  system  becomes  useless  and  impracti- 
cable. 

But  it  has  been  suggested,  that  the  law  in  question  is  an 
ex  post  facto  law,  and  therefore  void  by  the  ninth  section  of 
the  first  article,  which  declares,  that  "  no  bill  of  attainder 
*'  or  ex  post  facto  law  shall  be  passed." 

It  might  be  sufficient  to  remark  that  this  provision  of 
the  constitution,  relates  to  criminal  law  only.  It  has  been 
so  decided  by  the  Supreme  Court  of  the  United  States 
in  the  case  of  Calder  v.  Bull,  3  Dull.  386.  But  even  if  it 
were  extended  to  civil  cases,  it  would  not  prevent  con- 
gress from  passing  a  law,  by  which  priority  in  payment 
was  secured  to  the  United  States,  from  the  estates  of  de- 
ceased persons,  without  interfering-  with  the  vested  rights 
of  any  of  the  creditors.  A  general  creditor  has  no  right 
to  any  particular  part  of  the  estate  of  his  debtor.  If  he 
wants  to  be  secure,  he  should  obtain  a  conveyance,  or  some 
kind  of  lien.  A  law  which  should  deprive  him  of  the  benefit 
of  a  conveyance  or  lien  by  ex  post  facto  operation,  would 
indeed  be  most  unjust.  But  a  man  who  trusts  to  the  gene- 
ral credit  of  his  debtor,  has  no  right  to  complain,  if  in  case 
of  a  deficiency  of  assets,  he  loses  part  of  his  debt,  in  conse- 
quence of  a  law  intended  to  operate  for  the  public  benefit. 
In  all  countries,  it  has  been  judged  proper  to  make  a  dis- 
tinction in  the  order  of  payment  of  debts  due  from  deceased 
persons,  and  in  most  countries,  debts  due  to  the  govern- 
ment are  first  paid.  This  often  falls  hard  upon  individuals, 
but  is  supposed  to  work  for  the  general  good,  because 
losses  by  insolvency  must  be  made  good  by  taxes.  The 
state  of  Pennsylvania  always  took  preference  to  individuals, 
until  the  act  of  April  1 794,  which  directs  that  debts  due  to 
the  state  from  deceased  persons,  shall  be  last  paid.  But 
as  long  as  she  held  the  preference,  its  propriety  was  never 
doubted ;  and  even  yet  she  takes  a  preference  with  regard 
to  the  estates  of  living  debtors,  for  an  account  settled  by  the 
accounting  officers  of  the  Commonwealth,  becomes  a  lien 
on  all  the  real  estate  of  the  debtor. 


271 


1814. 


COMMON- 
WEALTH 

v. 
LEWIS. 


272 


CASES  IN  THE  SUPREME  COURT 


1814. 


COMMON- 
WEALTH 

v. 
LEWIS. 


It  will  appear  from  these  observations,  that  if  the  congress 
have  judged  it  necesary  to  give  a  preference  to  the  United 
States,  it  is  no  more  than  most  other  governments  have  done ; 
which  strengthens  the  argument  in  favour  of  the  necessity 
and  propriety  of  the  measure.  But  the  validity  of  this  law  has 
been  already  decided  in  the  case  of  the  United  States  against 
Fisher  &c.  assignees  of  Blight,  2  Cranch  358,  by  the  Su- 
preme Court  of  the  United  States,  who  in  all  cases  arising 
under  the  constitution  or  acts  of  congress  made  in  pursu- 
ance of  it,  are  judges  in  the  last  resort.  Considering  the  law 
as  settled  by  this  decision,  I  should  have  abstained  from  the 
few  remarks  which  I  have  made,  were  it  not,  that  on  our 
own  bench,  we  are  not  unanimous  in  opinion. 

I  will  now  consider  the  act  of  congress,  in  order  to  see 
whether  it  embraces  the  case  of  Sharpe  Delany.  It  is  enacted 
by  the  5th  section  of  the  act  of  3d  March  1797,  "  that  where 
44  any  revenue  officer  or  other  person,  hereafter  becoming 
44  indebted  to  the  United  States  by  bond  or  otherwise,  shall 
4' become  insolvent,  or  where  the  estate  of  any  deceased 
"  debtor  in  the  hands  of  executors  or  administrators  shall 
"be  insufficient  to  pay  all  the  debts  due  from  the  deceased, 
u  the  debt  due  to  the  United  States  shall  be  first  satisfied." 

It  is  contended  first,  that  all  the  provisions  of  this  section 
are  confined  to  debts  contracted  after  the  passing  of  the  act ; 
and  next,  that  Delany*s  debt  was  contracted  prior  to  the 
act,  and  therefore  not  within  it.  The  argument  is  this.  It  is 
the  intention  of  the  act  expressly  decared,  that  in  case  of  in- 
solvency of  living  persons,  there  is  no  preference  as  to  debts 
contracted  before,  and  therefore  it  must  be  presumed,  that 
there  was  the  same  intent  in  cases  of  deceased  persons,  es- 
pecially as  such  intent  is  most  agreeable  to  justice,  and  it  is 
asked  what  reason  there  could  be  for  a  distinction.  It  would 
be  very  agreeable  to  me,  if  I  could  think  the  defendant's 
construction  right,  because  he  is  an  innocent  surety  in  dan- 
ger of  suffering  by  an  act  of  kindness.  But  when  the  mean- 
ing appears  to  be  plain,  it  must  govern  the  construction. 
When  in  one  part  of  a  sentence,  the  expressions  are  persons 
hereafter  becoming  indebted,  and  in  another  part  these  expres- 
sions are  changed  to  any  debtor,  and  these  two  descriptions  are 
applied  to  different  cases,  how  can  it  be  maintained  that  the 
intent  is  the  same  ?  If  indeed  no  reason  can  be  assigned  for 


OF  PENNSYLVANIA. 


27: 


a  difference,  I  agree  that  the  intent  should  be  taken  to  be 
the  same,  because  in  such  case  it  might  be  well  supposed 
that  the  change  of  expression  was  introduced  through  inad- 
vertence.   But  it  appears  to  me,  that  the  reason  for  a  differ- 
ent intent  is  obvious.  Preferences,  though  useful  to  the  public, 
bear  hard  upon  individuals ;  therefore  the  greater  the  ex^ 
tent  to  which  they  are  carried,  the  greater  should  be  the 
caution,  to  prevent  injury  to  individuals.    Where  the  pre- 
ference is  confined  to  the  case  of  deceased  debtors,  it  has  not 
been  usual  to  pay  regard  to  the  time  of  the  debt  being  con- 
tracted, because  the  debtor  has  it  in  his  power  during  his 
whole  life  to  do  justice  to  each  individual,  and  the  creditor 
\vho  does  not  press  for  security  has  chiefly  himself  to  blame. 
But  the  preference  is  carried  much  farther,  when  it  is  ap- 
plied to  the  case  of  a  man,  who  finding  himself  in  bad  cir- 
cumstances, wishes  to  divide  his  property  among  his  credi- 
tors equally  by  a  voluntary  assignment.     This  takes  away 
from  the  debtor  the  power  of  doing  justice  during  his  life, 
which  he  would  have  enjoyed   if  the  preference  were  not 
to  attach  until  after  his  death.     Where  such  extraordinary 
priority  is  intended,  it  is  but  justice  to  inform  all  the  world 
of  it,  before  it  can  take  effect.     When  it  is  known,  that  a 
man  who  becomes  indebted  to  the  United  States,  has  it  no 
longer  in  his  power  to  make  an  equal  division  among  his 
creditors  in  case  of  misfortune,  people  may  at  least  take  care 
how  they  deal  with  a  revenue  officer  or  other  persons,  who 
have  large  contracts  with  the  government.  And  this  was  the 
reason  why  in  such  cases,  the  preference  of  the  United  States 
was  confined  to  debts  contracted  after  the  passing  of  the 
act.    Such  being  my  opinion  on  the  construction  of  the  law, 
it  becomes  unnecessary  to  consider  at  what  time  the  debt 
was  contracted. 

As  to  interest,  it  is  agreed  that  the  defendant  is  liable  to 
the  same  interest,  which  might  have  been  recovered  against 
the  administrators  of  Delany,  in  an  action  by  the  United 
States  against  them.  Now  by  the  twelfth  section  of  the 
same  act  of  Congress,  it  is  expressly  enacted,  that  in  case  of 
an  action  and  judgment  for  the  United  States  against  a 
revenue  officer,  for  money  received  by  him,  and  not  paid 
into  the  treasury,  interest  at  the  rate  of  six  per  cent,  per 
annum  shall  be  recovered,  from  the  time  of  receiving  the 
VOL.  VI.  2  M 


1814. 


COMMON- 
WEALTH 

v. 
LEWIS, 


274 


CASES  IN  THE  SUPREME  COURT 


1814. 


COMMON- 
WEALTH 

v. 
LEWIS. 


money  until  it  shall  be  paid  into  the  treasury.  In  this  case, 
I  understand  the  attorney  for  the  United  States,  offers  to 
take  tlfe  interest  from  the  time  Sharpe  Delany  went  out  of 
office,  which  is  putting  the  matter  upon  as  favourable  a 
footing  for  the  defendant  as  the  law  will  permit.  It  was 
urged  for  the  defendant,  that  there  ought  not  to  be  interest 
for  any  time  before  the  commencement  of  the  action,  be- 
cause the  money  could  not  legally  be  paid  without  a  war- 
rant from  the  treasury,  and  no  warrant  was  drawn.  It  is  very 
clear  that  this  was  not  the  reason  why  payment  was  delayed. 
The  administrators  of  Delany  were  never  prepared  to  pay, 
and  have  received  considerable  indulgence.  But  although  it 
may  be  necessary  for  a  warrant  to  be  issued,  before  money 
is  received  in  the  treasury,  in  order  that  the  secretary  of 
the  treasury  may  be  exactly  informed  of  the  state  of  the 
treasury,  yet  that  is  a  matter  between  the  officers  ot  govern- 
ment. I  am  satisfied,  that  in  practice,  payments  are  made 
by  the  debtor  without  warrant,  and  such  payments  would 
no  doubt  be  held  good.  I  am  therefore  of  opinion,  that 
interest  should  run  from  the  time  that  Delany  went  out  of 
office. 

YEATES  J.  I  adhere  to  the  opinion  which  I  delivered  on 
the  trial  of  this  cause,  and  of  which  copies  have  been  fur- 
nished. I  will  not  repeat  the  grounds  on  which  my  judg- 
ment was  then  formed,  on  the  true  construction  of  the  fifth 
section  of  the  act  of  congress  of  3d  March,  1797,  as  to  the 
priority  claimed  by  the  United  States  in  the  payment  of  the 
debts  of  a  deceased  revenue  officer.  Upon  the  fullest  reflec- 
tion, I  cannot  perceive  any  intention  in  the  legislature,  that 
the  word  hereafter,  used  in  the  first  part  of  the  section  as 
applicable  to  a  living  debtor,  should  be  interposed  in  the 
succeeding  part,  to  meet  the  case  of  a  deceased  debtor.  The 
two  members  of  the  section  are  distinct  and  independent. 
It  has  been  urged  that  this  provision,  in  the  sense  in  which 
I  understand  it,  is  retrospective  in  its  operation,  and  tends 
to  defeat  the  vested  rights  of  other  creditors.  I  am  at  a  loss 
to  conceive  such  vested  rights,  because  the  right  of  priority 
forms  no  part  of  the  contract  itself,  but  is  extrinsic,  and 
depends  on  the  lex  loci.  5  Cranch  299,  Harrison  v.  Sterret. 
If  however,  we  should  allow  weight  to  the  remark,  it  would 


OF  PENNSYLVANIA. 


275 


equally  apply  to  all  laws,  directing  the  order  of  payment  of 
the  debts  of  persons  deceased.  By  our  old  act  of  4ih  August" 
1705,  debts  due  to  the  queen  were  to  be  paid  after  physic 
and  funeral  expenses,  and  judgment  creditors  were  post- 
poned to  the  proprietary  and  governor.  The  act  of  19th 
April  1794,  3  Dall.  State  Laws  527, -institutes  new  pro- 
visions ;  but  both  those  laws  evince  that  preferences  of 
different  creditors  of  a  deceased  debtor,  were  not  deemed 
unreasonable  or  unjust.  In  neither  of  them  is  there  any 
discrimination  between  the  debts  contracted  before  or  after 
the  passing  of  those  laws. 

Should  I  however,  have  been  mistaken  in  my  construc- 
tion of  the  act  in  question,  what  will  be  the  result  ?  I  neither 
formed  nor  delivered  any  opinion  to  the  jury,  whether  the 
whole  or  any  part  of  the  67,821  dollars  31  cents,  found  as 
a  balance  against  the  estate  of  Sharpe  Delanij,  became  due 
after  or  before  the  passing  of  the  law.  In  my  view  of  the 
case  it  was  wholly  unnecessary,  and  therefore  in  my  state- 
ment of  the  facts,  under  the  special  agreement  of  counsel, 
I  thought  it  more  correct  to  submit  it  to  the  decision  of  the 
Court. 

It  appears  by  the  evidence,  that  the  balance  of  cash 
remaining  in  the  hands  of  the  said  Sharpe  Delany,  according 
to  the  quarterly  settlements,  made  by  the  comptroller  up  to 
the  31st  of  March  1797,  (which  was  twenty-eight  days 
after  the  passing  of  the  act  of  congress)  was  $  102,262  73 
A  like  balance  of  cash  for  the  quarter  ending 

the  30th  June  1797,  -      130,918  19 

A  like  balance  of  cash  for  the  quarter  ending 

the  30th  September  1797,  83,O20  23 

A  like  balance  of  cash  for  the  quarter  ending 

the  31st  December  1797,  -         -  86,32280 

A  like  balance  of  cash  for  the  quarter  ending 

the  31st  March  1798,     -  -  96,952  19 

And  that  upon  a  final  settlement  up  to  the 

30th  June  1798,  there  remained  a  balance 

due  from  him  to  the  United  States  of        -         67,821  31 

The  duties  of  the  several  collectors  are  pointed  out  by 
the  act  of  congress  of  4th  August  1790.  They  are  authoriz- 
ed to  receive  the  public  duties  and  imposts,  and  to  pay  the 
drawback  on  goods  exported ;  and  for  this  latter  purpose, 


1814. 


COMMON- 
WEALTH 

v. 
LEWIS. 


CASES  IN  THE  SUPREME  COURT 


1814. 


COMMON- 
WEALTH 

v. 
LEWIS. 


they  retain  such  monies  in  their  hands  as  they  may  judge 
"adequate.  They  are  charged  with  the  different  quarterly  ba- 
lances of  the  monies  unpaid,  and  account  for  those  sums 
from  time  to  time.  Should  the  comptroller  conceive  from  the 
documents  in  his  office,  that  a  larger  sum  is  retained  in  the 
hands  of  the  collector,  than  in  all  probability  will  meet  the 
public  exigencies,  it  becomes  his  duty  to  give  an  order  that 
the  supposed  excess  be  paid  into  the  public  treasury.  But 
while  the  floating  balances  varying  from  time  to  time,  ac- 
cording to  the  imports  into,  and  exports  from  the  United 
States,  remain  in  the  hands  of  the  collector,  specially  appro- 
priated to  the  payment  of  the  drawbacks,  he  cannot  with 
any  propriety  be  considered  as  indebted  to  the  Union  in 
these  several  sums,  but  is  accountable  therefor.  His  succes- 
sive payments  of  drawbacks  must  be  supposed  to  be  made 
out  of  his  quarterly  balances,  and  new  amounts  are  raised 
against  him,  enlarging  and  diminishing  those  balances 
according  to  the  extents  of  imports  and  exports.  In  this 
view  of  the  case  therefore,  I  think  Sharpe  Delany  became 
indebted  to  the  United  States  for  the  67,821  dollars  31  cents 
after  3d  March  1797. 

The  act  of  congress  of  3d  March  1797,  supersedes  the 
provisions  of  our  act  of  assembly  of  19th  April  1794,  as  to 
the  priority  claimed  by  the  United  States^  and  must  govern 
in  this  instance,  as  the  paramount  law.  The  condition  of  the 
administration  bond  is,  that  .he  administrator  shall  pay  over 
according  to  law. 

I  am  also  constrained  to  say,  that  the  want  of  a  warrant  in 
this  instance  to  pay  over  the  sum  due  to  the  treasury,  will 
not  excuse  the  administrators  from  paying  interest.  The 
money  was  demanded  by  a  suit,  and  a  payment  therein 
would  fully  have  discharged  the  administrators. 

BRACKENRIDGE  J.  By  article  7th  of  amendments  to  the 
Constitution  of  the  United  States^  March  4th  1782,  it  is  pro- 
vided that "  private  property  shall  not  be  taken  for  public  use 
"  without  just  compensation."  Does  this  act  of  March  3d 
1797,  sec.  5.  take  away  "  private  property  for  public  use  with- 
u  out  just  compensation  ?"  No  compensation  is  pretended,  and 
what  compensation  could  there  be  but  the  thing  taken  away  ? 
For  it  is  in  kind  the  same;  and  a  compensation  to  be  just- 


OF  PENNSYLVANIA. 


277 


must  in  this  case  be  the  same  with  that  taken  away.  Money 
for  money.  It  is  a  private  debt  that  is  to  be  taken  away,  to  " 
satisfy  a  public  debt ;  a  debt  to  a  citizen,  to  let  in  a  debt  due 
to  the  public.  Is  not  this  taking  away  "  private  property  for 
*'  public  use  ?"  Let  us  analyze  this  a  little,  and  see  whether 
a  debt  due  to  me,  is  not  my  property  as  much  as  any  other 
interest* 

On  credit  given  by  one  individual  to  another,  he  acquires 
an  interest  in  the  debt.  It  is  immaterial  whether  the  founda- 
tion of  the  credit  has  been  goods  sold,  or  money  lent. 
He  has  just  as  good  a  right  to  the  debt  due,  as  he  had  to 
the  property  before  he  parted  with  it.  He  has  a  right  to 
recover  the  consideration  according  to  the  contract,  just  as 
he  had  before  to  retain  that  property  on  which  the  conside- 
ration had  arisen.  A  contract  for  services  performed,  or  to 
be  performed,  stands  upon  the  same  ground.  He  had  a  right 
to  withhold  his  services  before  the  contract,  and  having 
performed  these,  in  consideration  of  the  thing  contracted 
for,  he  has  a  right  to  that  thing.  His  right  to  recover  the 
compensation,  is  as  perfect  as  a  right  to  any  claim  of  pro- 
perty not  in  his  possession.  In  common  understanding,  the 
debtor  is  worth  so  much  less  by  the  debt  which  he  owes.  If 
so,  the  thing  subtracted  must  be  in  him  to  whom  he  owes  ; 
hence  we  say,  if  all  his  debts  are  paid  the  man  is  worth 
nothing.  In  justifying  bail  we  consider  the  surety  as  worth 
only  so  much  as  he  swears  to,  over  and  above  his  debts.  In 
whom  is  the  interest  in  the  drawback,  but  in  his  creditors  ? 
This  is  the  language  of  the  civil  law,  L.  49,  tit.  14.  sec.  11. 
Id  enim  bonorum  cujusque  esse  intelligitur,  quod  ceri  alieno 
superest.  A  man  is  worth  just  so  much  as  is  over  and  above 
his  debts  paid. 

The  civil  law  knew  nothing  of  a  priority  of  payment 
in  favour  of  the  public.  For  in  this  same  book,  and 
under  this  same  title,  it  is  laid  down,  that  a  question 
having  been  made  by  a  civilian,  whether  in  the  case  of  an 
insolvent,  the  goods  should  go  to  the  public,  it  was  establish- 
ed to  the  contrary.  An  bona  qua:  solvendo  non  sint  ad  fis- 
cumpertineant,  qucesitum  est  ?  Labeo  scribit,  etiam  ea  quce  sol- 
vendo  non  sint,  ipsojureadfiscumpertinere.  Sed  contra  sen- 
tentiam  ejus  edictum  perpttuum  scriptum  est,  quod  ita  bona 
veneunt  si  ex  hisjisco  adquiri  nihil  possit.  The  goods  of  an 
insolvent  are  to  be  sold,  even  in  a  case  where  the  nsc 


1814. 


COMMON- 
WEALTH 

v. 
LEWIS. 


278 


CASES  IN  THE  SUPREME  COURT 


1814. 

COMMON- 
WEALTH 

v. 
LEWIS. 


or  treasury  can  get  nothing  from  thence.  For  non  possunt 
'ulla  bona  adfiscum  pertinere,  nisi  quce  creditonbus  superfu- 
tura  sunt.  The  treasury  can  have  no  property  in  that  but 
what  remains  after  paying  creditors.  And  again,  omnium  fis- 
calium  pccnarum petitionem  creditoribus  postponi.  AH  claims 
on  account  of  revenue  are  to  be  postponed  to  creditors.  As 
between  citizen  and  citizen  where  debts  are  in  cequali.  jure, 
on  ground  of  natural  equity  a  prorata  satisfaction  must  take 
place.  The  common  law  speaks  of  a  debt  of  a  higher  nature, 
that  is  a  debt  by  higher  evidence  of  obligation ;  and  this 
may  be  all  fair,  for  it  was  in  the  power  of  the  party  con- 
tracting, to  make  his  debt  of  a  higher  nature  by  this  evi- 
dence ;  or  if  in  the  nature  of  the  contract  it  could  not  be 
made  so,  it  was  an  incident  to  the  nature  of  it.  This  is  all 
equal,  and  there  is  no  robbery  in  the  case.  But  if  a  debt  due 
to  me  is  property,  it  is  a  robbery  to  deprive  me  of  it.  Can 
the  common  or  enlightened  mind  feel  any  difference  between 
the  taking  away  of  my  estate,  and  the  right  to  recover 
that  for  which  I  may  have  sold  it,  and  which  remains  due  ? 
My  demand  is  taken  away,  not  on  the  ground  of  being  a 
debt  of  a  higher  nature,  either  from  the  higher  evidence  or 
the  nature  of  the  consideration,  moral  or  legal,  but  a  debt 
due  to  the  whole  instead  of  a  debt  due  to  one.  Why  shall  the 
payment  of  a  debt  due  to  one,  be  postponed  to  a  debt  due  to 
the  whole  ?  The  public  is  said  to  have  a  broad  back,  and  one 
would  suppose  that  the  whole  could  afford  to  bear  a  delay 
or  a  loss,  better  than  an  individual.  What  would  be  a  small 
matter  divided  among  many,  might  be  ruin  to  a  private 
person.  Doubtless  it  might  be  made  a  principle  in  the  foun- 
dation and  original  compact  of  the  society,  and  in  that 
case  there  could  be  nothing  to  be  said.  A  regulation  against 
natural  equity  might  be  sustained  by  such  compact  or 
understanding,  for  the  body  politic  would  have  sanctioned 
and  admitted  it.  But  independent  of  compact  or  tacit  acqui- 
escence, can  it  be  just  ?  It  is  against  natural  equity  that  a  part 
should  bear  a  loss  to  ease  the  whole.  Why  shall  an  indivi- 
dual contribute  more  than  his  proportion  of  the  loss  ? 
Does  he  not  bear  his  proportion,  when  he  comes  to  be  called 
upon  in  common  with  the  other  citizens  to  pay  his  quota 
by  way  of  tax,  to  make  up  for  a  delinquency  in^.  particular 
case  ?  I  call  it  robbery  to  take  away  his  debt  due  to  him, 


OF  PENNSYLVANIA. 


279 


over  and  above  this.  It  is  not  robbing  Peter  to  pay 
but  it  is  robbing  Peter  to  pay  Paul  and  Peter's  club.  The" 
whole  ought  to  pay  the  club,  and  Peter  only  his  proportion 
of  the  share. 

Whether  of  feudal  origin,  or  how  it  came  into  existence, 
I  cannot  here  undertake  to  investigate ;  but  I  admit  that 
this  priority  in  the  payment  of  public  dues,  is  a  prerogative 
of  the  sovereign  in  England.  But  was  it  carried  with  us 
in  our  colonization  ?  In  this  colony,  Pennsylvania^  it  would 
not  seem  to  have  been  thought  so;  for  by  acts  of  assembly 
1705,  1710,  1764,  preference  to  a  certain  extent  was  given, 
to  the  Commonwealth,  which  goes  to  prove,  that  it  was  not 
thought  to  have  a  preference  by  the  British  prerogative  of 
the  common  law  introduced  here.  But  the  Commonwealth, 
being  the  whole  people,  and  subject  to  no  control  of  a 
higher  law,  may  be  said  to  have  had  the  same  power  to  in- 
troduce such  a  principle  as  at  the  first  formation  of  a  society  ; 
at  least,  enacted  by  the  representative,  and  acquiesced  in  by 
the  people,  it  amounted  to  the  same  thing  as  if  originally 
established  in  the  compact  of  the  society,  and  acquired  the 
force  of  a  legitimate  principle.  It  might  be  retained,  altered 
or  modified,  according  to  the  expediency  and  reason  of  the 
rule.  Accordingly  by  act  of  assembly  1794  it  is  altered,  the 
principle  is  changed,  and  it  is  provided  that  the  Common- 
wealth shall  be  postponed  to  a  debt  due  to  a  private  person ; 
and  so  far  from  claiming  a  priority,  or  even  a  pro  rata 
satisfaction  in  the  case  of  a  debt  cequalijure^  it  shall  be  last 
paid.  Not  that  I  contend  for  such  postponement,  but  that  the 
whole  shall  be  put  upon  a  footing  with  an  individual,  and 
that  in  case  of  debts  of  an  equal  nature,  the  prior  in  tern- 
pore  potror  in  jure  shall  prevail ;  but  it  shews  the  sense  of 
the  community,  that  where  a  loss  must  be  sustained,  it  is 
reasonable  that  the  many  shall  bear  it  rather  than  the  few. 

It  may  have  been  the  provision  of  the  state  constitution 
of  1790,  August  9th,  that  no  man's  property  shall  be  taken  or 
applied  to  public  use  without  just  compensation  being  made, 
that  may  have  led  to  this  repeal  or  modification  of  the  for- 
mer law,  in  the  case  of  the  prerogative  claim  of  priority 
of  payment  on  behalf  of  the  Commonwealth.  But  the  power 
of  the  state  to  provide  in  this  case,  stands  upon  a  footing 
totally  different  from  that  under  the  federal  compact,  either 


1814. 


COMMON- 
WEALTH 

•v. 
LEWIS. 


280 


GASES  IN  THE  SUPREME  COURT 


1814. 


COMMON- 
WEALTH 

v. 
LEWIS 


as  to  giving  the  whole  a  priority,  or  regulating  priority 
"among  individuals.  Under  the  federal  constitution,  720 power 
can  be  exercised  that  was  not  expressly  given^  or  to  be  in- 
ferred by  necessary  implication.  These  powers  were  hewn 
out  of  the  power  originally  in  the  people  of  the  several 
states.  The  congress  had  not  even  the  power  of  the  people 
of  each  several  state,  if  any  state  consistent  with  natural 
equity  could  have  given  itself  a  priority  in  the  payment  of 
public  dues.  The  federal  government  was  but  in  the  nature 
of  a  restricted  authority.  The  framers  of  the  constitution 
thought  it  not  necessary  to  specify  reservations  or  give  a 
bill  of  rights.  Some  of  these,  which  were  thought  unnecessary, 
were  however  passed,  on  objections  taken  to  the  frame  of 
the  federal  government,  and  afterwards  brought  forward 
as  amendments  to  the  constitution,  more  I  take  it  to  recon- 
cile opposition  than  because  they  were  necessary.  For 
who  would  ever  have  thought  it  necessary  that  there  should 
be  such  an  express  stipulation,  as  "  that  private  property  shall 
"not  be  taken  for  public  use  without  just  compensation?" 
Article  7th  of  amendments^  March  4th  1789.  It  could  not  but 
be  understood,  that  as  an  incident  to  the  general  government, 
the  exercise  of  the  dominium  eminens  must  exist,  so  far  as 
respected  the  taking  or  occupying  grounds  for  the  purpose 
of  national  defence  or  for  great  public  utility,  and  this  as  an 
incident  could  not  be  supposed  to  carry  with  it  also  the 
obligation  to  compensate  for  the  soil,  or  for  the  use  accord- 
ing to  a  just  valuation.  The  taking  property  otherwise,  was 
never  dreamed  of,  and  therefore  no  provision  made.  Nor  do 
I  believe  that  under  this  amendment,  any  other  case  was 
thought  of,  than  the  taking  such  property  for  permanent  or 
temporary  use,  as  that  to  which  the  dominium  eminens  was 
always  and  under  all  governments  considered  as  extending, 
But  independent  of  implied  power  in  the  general  government, 
or  power  incident  to  the  exercise  of  the  supreme  authority, 
the  providing  for  the  common  defence  and  general  welfare 
of  the  United  States,  as  in  section  eighth  of  the  constitution, 
and  the  power  to  make  all  laws  which  shall  be  necessary  for 
carrying  into  execution  the  foregoing  powers,  must  be  con- 
sidered as  expressly  giving  the  exercise  of  the  dominium 
eminens  in  all  matters  known  to  be  the  subject  of  it ;  and 
this  upon  compensation  made. 


OF  PENNSYLVANIA. 


281 


But  even  this  exercise  of  the  dominium  eminens  is  re- 
stricted, and  it  must  be  a  purchase  u  by  the  consent  of  the 
"  legislature  of  the  state,  in  which  the  same  shall  be,  that 
"forts,  magazines,  arsenals,  dock  yards,  and  other  needful 
"  buildings  shall  be  erected."  A  purchase  implies  considera- 
tion. The  taking  private  property  for  the  purpose  of  increas- 
ing public  funds  was  never  thought  of,  though  doubtless  it 
must  be  said  not  to  be  included  in  the  prohibition. 

But  it  will  be  said,  the  general  government  is  charged 
with  the  raising  and  supporting  armies,  and  with  providing 
and  maintaining  a  navy,  and  in  doing  this  debts  must  be 
incurred.     But  by  article  1.  sect.  8.  the  congress  are  em- 
powered to  lay  and    collect    taxes,   duties,   imposts,  and 
excises,  to  pay  the  debts.     Is    any  thing  more   than  this 
necessary  to  pay  debts  ?  It  will  be  alleged,  and  would  seem 
to   be  implied  by  this  act  of  March  3d   1797,  that   it  is 
necessary  to  go  farther.    The  congress  that  enacted  it  have 
doubtless  thought  so.     But  had  they  a  right  to  think  so,  at 
least  to  enact  it  ?     Was  it  necessary  to  go  that  length  as  to 
the  recovery  of  debts  that  might  be  due  ?    When  the  gene- 
ral government  has  any  thing  to  dispose  of,  it  can  have 
the  quid  pro  quo  paid  down  before  it  parts  with  the  property. 
If  a  trust  is  given  in  receiving  dues,  there  is  no  scarcity  of 
persons   offering  to  accept  an    office,  and  security  can  be 
obtained,  even  if  the  persons  offering  are  not  of  themselves 
of  great  estate,  so  as  to  secure  against  a  delinquency  j  so  that 
in  the  original  contract  to  perform  any  thing,  the  public 
have  all  the  means  of  securing  themselves  that  an  individual 
has,  and  why  should  it  want  more  ?     An  honest  individual 
has  his  debts  to  pay  too,  and  why  take  from  him  the  means, 
by  taking  away  the  debt  that  is  due  to  him,  or  lessening  it, 
by  the  United  States  paying  themselves  the  whole  of  their 
debt  in  the  first  instance  ?  Had  the  act  gone  no  further,  than 
that  in  case  of  credit  given  to  a  revenue  officer,  after  becom- 
ing such,  the  debt  should  be  postponed  to  that  of  the  pub- 
lic, there  would  be  less  to  be  said.  I  should  have  no  objec- 
tion to  the  having  it  understood,  that  on  credit  given  to  a 
revenue  officer  or  other  public  agent,  it  should  be  at  the  risk 
of  the  person  giving  the  credit.  This  might  be  all  fair,  there 
would  be  notice.  He  gave  the  credit  with  his  eyes  open,  and 
at  his  own  risk.     I  might  perhaps  submit  to  the  same  law 
VOL.  VI.  2  N 


1814. 


COMMON- 
WEALTH 

•y. 
LEWIS. 


282 


1814. 


COMMON- 
WEALTH 

v 
LEWIS. 


CASES  IN  THE  SUPREME  COURT 

with  regard  to  a  credit  given  after  suit  brought,  against  any 
person  not  a  revenue  officer,  because  in  this  case  there  would 
be  a  kind  of  notice  of  which  the  law  speaks,  a  constructive 
notice.  There  would  be  something  to  save  appearances  in 
this,  and  it  would  not  be  just  so  barefaced  as  it  stands 
under  the  act  of  March  3d  1797  ;  that  is,  that  the  appoint- 
ment of  a  revenue  officer,  or  the  contracting  by  the  public 
with  any  person,  should  immediately  make  him  a  new  man, 
and  wipe  away  all  antecedent  scores,  so  far  at  least  as  to  let 
in  public  claims,  subsequently  arising,  to  be  first  paid.  For  it  is 
in  the  act  of  congress,  "other  persons  becoming  indebted  ;" 
and  hence  it  is,  that  though  an  individual  might  guard 
against  crediting  a  public  officer  after  notice  of  his  being 
such,  yet  it  would  be  impossible  to  anticipate  the  will  of 
congress  in  creating  an  agency,  or  the  president  in  appoint- 
ing to  that  trust.  Even  such  a  constructive  notice  from  a 
suit  brought  by  the  United  States,  would  work  sufficient 
hardship,  from  the  difficulty  of  obtaining  actual  knowledge 
by  inspecting  dockets  at  a  great  distance.  When  any  indivi- 
dual of  the  community,  offers  to  contract  and  take  credit, 
there  is  no  putting  him  to  his  oath,  whether  he  owes  any 
thing  to  the  public,  or  whether  a  suit  has  been  brought 
against  him.  But  if  he  was  put  to  his  oath,  it  is  not  what  he 
owes,  but  what  he  might  come  to  owe,  or  have  a  suit 
brought  against  him  for,  that  is  to  be  considered.  The  per- 
son crediting  might  demand  security  from  the  person  cre- 
dited, that  he  never  would  owe  any  thing,  or  have  a  suit 
brought  against  him.  In  the  nature  of  the  case  this  is  all 
that  could  be  done. 

But  it  will  be  said  the  wisdom  of  the  great  counsel  of  the 
nation  has  enacted  the  law,  and  the  presumption  is,  that  it 
is  constitutional.  I  grant  the  presumption  does  arise ;  but  it 
is  weakened  not  a  little,  when  the  nature  of  a  representative 
government  is  taken  into  view.  The  representative  to  keep 
his  place  must  preserve  his  popularity,  and  all  is  odious 
that  sounds  in  tax.  Whatever  therefore  will  be  in  ease  of  a 
direct  application  to  the  pockets  of  the  whole,  there  is  a 
temptation  to  adopt;  so  that  it  is  not  altogether  the  wisdom 
or  justice  of  public  measures,  but  the  self  preservation  of 
the  representative,  that  is  in  question,  when  a  vote  is  given. 

But  the  judiciary  are  the  guardians  of  the  constitution? 


OF  PENNSYLVANIA.  283 

and  it  is  a  presumption  in  favour  of  the  law  that  they  have        1814. 
not  questioned  it.    It  is  doubtless  the  presumption,  but  it  is     COMMON- 
not  conclusive.     And  having  a  right  to  question  it,  and  my     WEALTH 
reason    so   directing,    I    must    bear    testimony  against  it.  v* 

Doubtless  such  protest  cannot  carry  great  weight  with  it,       LEWIS. 
but  it  may  weigh,  and  ill  due  time  work  to  some  effect. 
However  humble  the  source  from  which  reason  may  come, 
it  may  ultimately  be  heard  and  prevail. 

Judgment  for  the  plaintiff. 


6b  283 
Ig  886 
Ig387 
29  424 


T 


The  Commonwealth  against  SHEPHERD. 

HE  defendant  was  indicted  for  fornication  with  one    if  the  husband 
Sarah  Myers.  and  begetting  a  bastard  child  on  her  na*  access  to  his 

.    i    i     r          X-  cv  wife,  no  evidence 

body;  and  upon  the  trial  before  Teates  J.  in  July  last,  he  short  of  his  abso- 
was  convicted.  The  defendant  now  moved  lor  a  new  trial,  ca^bTstTniizTthe 
and  his  honour  reported  that  the  case  was  as  follows:  issue;  but  if  they 

.-  .  •     i    •         i  live  at  a  distance 

Sarah  Myers  the  prosecutnx  was  married  in  the  y  ear  from  each  other, 
1801.    She  lived  with  her  husband  two  or  three  years 


the  marriage,  when  he  went  off  to  New  Turk  where  he  had  the  question  of 

TT       r    i         cv  TT  legitimacy  may 

resided  ever  since.    Her  rather  James  Humphreys  took  her  be  decided  on  a 

back  to  his  own  house  in  Kensington,  and  she  had  uniformly  ^ui'JchSra^ 
dwelt  under  his  roof,  except  during  three  short  intervals,  stances. 

.      .  t      r  i     i        «•  11        *  •  Upon  an  indict- 

in  the  latter  end  of  1811,  and  the  following  spring,  when  ment  for  fomica- 
she  was  absent  from  her  father's  house  about  three  months,  tionan^astar>I-v' 

'  a  married  woman 

engaged  as  a  nurse  at  different  places.  Upon  these  occasions  is»  competent 

.....  >tii  witness  to  prove 

the  defendant  frequented  her  company,  was  with  her  late  at  the  criminal  con- 
night  when  the  families  had  eone  to  bed,  and  once  was  withne™n  tt!thner- 

The  wife  cun- 

her  all  night.     Her  husband  on  the  17th  of  March  1805,n0tPTOvet'ien°n- 

,          r     ,       ,      ,  access  of  the  1ms- 

came  to  her  lathers  house  and  supped,  but  did  not  sleep  band;  but  if  th 

there.     Since  that  time  he  had  not  been  known  to  be  mf^^ 

the  company  of  his  wife  either  at    her  father's  house  or  question  from  the 

.          ,  .  ,  answer  to  which 

elsewhere  ;  but  one  witness  swore  that  he  saw  Myers  in  thenoj.-accessmuy 
Philadelphia  market  on  the  lOth  of  June  1812,  and  he  was  1^^'"^,, 
seen  in  the  same  place  about  a  month  before,  and  also  in  "  smct  slie  liad 

.,    .  "seen  her  hus- 

the  spring  of   1  8  1  1  .  «  hand,"  and  af- 

The  prosecutrix  having  been  called,  swore  that  she  was  JJJJJ^JJJJ* 
delivered  of  a  male  child  on  the  24th  of  December  I812,wercnolloc.on' 

sider  any  thing 
which  ffltfroru 
the  wife  as  evidence  of  non-access,  the  verdict  cannot  be  disturbed  OD  account  of  the  question. 


284  CASES  IN  THE  SUPREME  COURT 

1814.        that  the  defendant  promised  to  marry  her,  had  frequent  cri- 

COMMON-     niinal  connexion  with  her,  and  was  the  father  of  the  child. 

•WEALTH          It  had  not  appeared  when  she  gave  this  evidence,  that  she 

v-  had  ever  been  married.     The  defendant's  counsel  put  that 

HERD.   qUestjon  to  her  on  the  cross  examination,  and  she  answered 

that  she  was  married  about  Christmas  18O1,  but  that  she 

did  not  know  whether  her  husband  was  dead  or  not.     The 

counsel  for  the  prosecution  then  asked,  when  she  last  saw 

her  husband.    The  defendant's  counsel  objected,  and  after  a 

long  discussion  the  judge  overruled  the  objection,  and  she 

answered  that  she  had  not  seen  him  for  eight  years. 

In  his  charge  to  the  jury,  Teates  J.  said,  that  if  upon  a 
consideration  of  all  the  evidence,  they  should  be  of  opinion 
that  the  husband  had  not  had  access  to  his  wife,  and  that 
the  child  was  really  begotten  by  the  defendant,  they  might 
find  him  guilty  of  both  fornication  and  bastardy ;  but  that 
they  were  not  to  consider  any  thing  which  fell  from  Sarah 
Myers  as  evidence  of  non-access. 

Brorvne  for  the  defendant. 

1.  The  verdict  was  against  law  and  evidence.  The  hus- 
band had  been  seen  in  Philadelphia,  several  times  after  he 
removed  to  New  Tork,  and  particularly  in  May  and  June 
1812;  and  no  evidence  was  given  to  shew  that  he  was  in 
New  Tork  at  the  time  when  the  child  was  begotten.  Access 
was  to  be  presumed,  until  the  contrary  was  shewn.  Although 
the  rule  of  the  four  seas  is  exploded,  yet  it  is  still  the  law 
that  if  the  husband  is  in  the  same  place  with  his  wife,  the 
issue  shall  be  bastardized  only  by  proof  of  his  impotence. 
It  is  not  necessary  that  he  should  be  in  her  company. 
Access  does  not  mean  connexion,  but  liberty  to  have  con- 
nexion. Lomax  v.  Holmden  (a),  is  in  point.  1  Bac.  Ab.  511. 
East.  A.,  1  Botts  Poor  L.  396.  397.,  1  Tuc&er's  Black. 
457".,  Rex  v.  Reading  (£),  1  Domat  622.  It  was  the  duty  of 
the  prosecution  to  rebut  the  presumption  of  access,  by  proof 
of  non-access,  and  so  should  the  judge  have  charged ;  whereas 
from  his  charge  to  the  jury,  they  must  have  understood  that 
there  was  no  such  presumption  in  favor  of  access.  St. 
George  v.  St.  Margaret  (c).  Peake's  Ev.  420. 

(a)  2  Stra.  940.  (6)  Hardtv.  ca.  79.  (73.)  (c)  1  Salk.  123. 


OF  PENNSYLVANIA.  285 

2.  Illegal  evidence  was  admitted.     It  is  perfectly  settled        1814. 
that  the  wife  cannot  prove  the  non-access  ;  and  yet  the  an-     COMMON- 
swer  to  the  question  went  to  shew  non-access  ;  for  it  is  a      WEALTH 
mere  play  upon  words,  to  say  that  a  wife  may  not  see  her  u> 

husband,  and  yet  he  may  have  access  to  her.  The  effect  of  fc 
this  answer  remained,  notwithstanding  what  the  judge  said 
in  his  charge,  and  we  are  entitled  to  go  to  a  jury  who  shall 
not  hear  that  question  or  the  answer.  The  wife  herself  was 
not  a  competent  witness  to  the  bastardy  ;  she  has  no  right 
to  release  her  husband  from  the  responsibiliy  of  maintaining 
her  issue,  nor  to  affect  his  reputation  by  her  testimony.  The 
act  of  1705  applies  only  to  cases  of  single  and  unmarried 
women  j  this  case  stands  at  common  law.  Drowne  v.  Stimp- 
son  (a)  is  a  strong  authority. 

Living  for  the  prosecution. 

1.  The  law  is  now  settled  that  access  or  non-access  may 
be  proved  by  circumstances.    Pendrell  v.  Pendrell  (£).  It 
was  therefore  properly  stated  to  the  jury  ;  and  no  one  can 
doubt  from  the  evidence,  that  their  inference  from  it  was 
right. 

2.  The  question  was  put  to  the  witness,  after  she  had  been 
asked  if  she  had  been  married,  and  she  had  answered  that  she 
did  not  know  whether  her  husband  was  dead  or  alive.  It  went 
to  corroborate  this  statement.  But  if  it  was  improper  because 
it  tended  to  shew  non-access,  that  tendency  was  counteracted 
by  the  charge.  The  wife  is  a  good  witness  to  prove  the  con- 
nexion, ex  necessitate  ;  but  the  non-access  must  be  shewn  by 
other  witnesses.  This  is  the  result  of  all  the  cases.  1  Botts 
455.  pi.  600.  Rex  v.  Reading  (c),  1  Botts  462.  pi.  607. 
397.  pL  593.  452.  pi.  593.  The  exception  to  her  testimony 
is  now  too  late,  it  should  have  been  taken  at  the  trial  before 
the  verdict  was  brought  in.  Hecker  v.  Jarret 


TILGHMAN  C.  J.  This  is  a  motion  for  a  new  trial  by 
William  Shepherd,  who  has  been  convicted  of  fornication 
with  Sarah  Myers,  and  begetting  a  bastard  child  on  her 
body.  The  reasons  assigned  are,  that  the  judge  who  tried 
the  cause  admitted  improper  evidence,  and  erred  in  his 

(«)  2  Mass.  441.  (c)  Andrews  10. 

(*)  2  Slra.  025.  (</)  3  lhwi.404. 


286  CASES  IN  THE  SUPREME  COURT 

1814.        charge  to  the  jury.     Also  that  the  verdict  was  against  the 

~~  evidence. 
COMMON- 
WEALTH         Sarah  Myers  was  a  married  woman.     Her  husband  had 

v.  left  her  some  years  previous  to  the  birth  of  the  bastard  child ; 

SHEPHERD.  he  lived  in  New  York,  and  she  in  Kensington  near  Philadel- 
phia. The  judge  charged  the  jury,  that  if  on  consideration 
of  all  the  evidence,  they  should  be  of  opinion  that  the  hus- 
band had  no  access  to  his  wife,  and  that  the  child  was  really 
begotten  by  the  defendant,  they  might  find  him  guilty  of 
both  fornication  and  bastardy.  In  this  he  was  clearly  right. 
In  old  times  it  seems  to  have  been  holden,  that  a  child  born 
of  a  married  woman,  whose  husband  was  within  the  four 
seas  which  bounded  the  kingdom,  could  not  be  considered 
as  illegitimate.  This  was  unreasonable.  When  the  husband 
has  access  to  his  wife,  it  is  right  that  no  evidence,  short  of 
absolute  impotence  of  the  husband,  should  bastardize  the 
issue.  But  where  they  live  at  a  distance  from  each  other,  so 
that  access  is  very  improbable,  the  legitimacy  of  the  child 
should  be  decided  upon  a  consideration  of  all  circumstances* 
The  law  was  so  laid  down  in  Pendrell  v.  Pendrell  in  the  fifth 
year  of  George  the  second,  2  Stra.  925,  and  has  ever  since 
been  considered  as  settled. 

With  respect  to  the  evidence  admitted  at  the  trial,  it  is 
objected,  first,  that  Sarah  Myers  was  not  a  competent  wit- 
ness, and  secondly,  that  granting  her  to  be  such,  she  ought  not 
to  have  been  asked,  "  how  long  it  was  since  she  had  seen 
"  her  husband."  The  first  objection  is  founded  upon  a  sup- 
position, that  her  evidence  was  received  under  our  act  of 
,  assembly,  which  provides,  that  a  man  may  be  convicted  of 

bastardy  on  the  oath  of  the  mother  of  the  child,  being  a  sin- 
gle -woman.  My  brother  Yeates,  before  whom  the  cause  was 
tried,  mentions  the  case  of  Doctor  M^  Clean,  against  whom  a 
married  woman  was  admitted  as  a  witness  after  full  argu- 
ment, and  the  law  as  he  conceives  has  been  so  taken  ever 
since.  M'Clearfs  case  was  before  my  memory,  but  I  have  no 
doubt  of  its  being  decided  on  correct  principles ;  because, 
throwing  the  act  of  assembly  out  of  the  question,  the  wo- 
man would  be  a  competent  witness  from  the  necessity  of 
the  case,  upon  common  law  principles.  I  do  not  mean  that 
she  would  be  a  witness  to  all  purposes,  but  only  as  far  as  the 
necessity  extends,  that  is  to  prove  the  criminal  connexion. 


OF  PENNSYLVANIA. 


287 


Further  than  that  she  ought  not  to  go ;  because  every  thing 
else  is  capable  of  proof  by  other  persons,  and  nothing  but" 
necessity  will  warrant  the  dispensing  with  the  rule,  that 
a  woman  shall  not  be  a  witness  in  a  matter  wherein  her 
husband  is  concerned  ;  and  here  he  is  very  much  concerned, 
both  in  property,  (for  he  is  bound  to  maintain  the  child  if  it 
be  legitimate)  and  in  character.  That  the  wife  may  be  a  wit- 
ness to  the  extent  I  have  mentioned,  and  no  further,  I  consi- 
der as  well  established  in  the  cases  of  The  King?.  Reading^ 
Cases  Temp.  Hardw.  79,  and  The  King-  v.  The  Inhabitants 
of  Bedel,  Cases  Temp.  Hardw.  379.,  2  Str.  1076.,  Andr.  8.  I 
should  therefore  be  of  opinion,  that  it  was  improper  to  ask 
"how  long  it  was  since  the  wife  saw  the  husband,"  unless 
something  which  had  been  asked  by  the  defendant's  counsel 
on  her  cross  examination,  made  way  for  it.  Without  some 
such  circumstance,  it  would  have  been  improper,  because 
the  answer,  "  that  she  had  not  seen  her  husband  for  eight 
"years,"  might  go  far  towards  proving  his  non-access,  which 
it  is  not  competent  to  her  to  prove,  that  being  a  matter  capa- 
ble of  proof  by  others.  The  judge  considered  the  questions 
put  by  the  defendant  on  the  cross  examination,  as  making 
way  for  the  question  objected  to,  viz.  *'  when  had  she  last 
**  seen  her  husband."  I  think  it  unnecessary  to  consider  that 
matter,  because  the  judge  afterwards  expressly  charged  the 
jury,  that  they  were  not  to  consider  any  thing  which  fell 
from  Sardh  Myers  as  evidence  of  non-access.  The  force 
of  what  she  said,  was  therefore  taken  off,  just  as  in  the 
common  case  of  a  witness,  who  after  being  sometime  exa- 
mined is  discovered  to  be  interested  in  the  cause,  when  the 
Court  tells  the  jury,  that  all  which  had  been  said,  is  to  go 
for  nothing.  But  it  is  again  objected,  that  it  may  not  be  in 
the  power  of  the  judge  to  remove  from  the  mind  of  the  jury, 
the  impressions  which  the  evidence  had  made.  I  answer 
that  it  is  not  to  be  supposed,  that  the  jury  will  disregard 
the  Court's  direction  in  matters  of  law.  Nor  is  there  any 
reason  to  suppose  they  did  so  in  this  case,  where  there  was 
strong  evidence  of  non-access  by  other  witnesses.  It  was 
proved  that  the  husband  had  left  his  wife,  and  resided  in 
New  Tork  for  several  years  before  the  birth  of  the  child ; 
nor  was  the  presumption  of  non-access  resulting  from  this, 
encountered  by  evidence  sufficient  to  shake  it.  There  was 


1814. 


COMMON- 
WEALTH 

v. 
SHEPHERD. 


288 


1814. 


COMMON- 
WEALTH 

v. 
SHEPHERD. 


CASES  IN  THE  SUPREME  COURT 

proof  indeed,  that  the  husband  had  been  seen  occasionally 
In  Philadelphia  ;  but  not  at  or  near  the  time,  when  this  child 
was  begotten.  Had  the  case  rested  upon  the  evidence  of  the 
woman  alone,  I  should  have  been  decidedly  for  a  new  trial; 
but  it  appears  to  me,  that  without  her  testimony,  the  jury 
would  have  been  warranted  in  concluding  that  there  had 
been  no  access.  Having  said  thus  much,  it  is  unnecessary  to 
add  any  remarks  on  the  remaining  objection,  of  the  verdict 
being  against  the  evidence.  Upon  the  whole  my  opinion  is 
against  a  new  trial. 

YEATES  J.  I  deem  it  my  hounden  duty  to  give  an  accu- 
rate statement  of  the  evidence  upon  the  trial  of  this  indict- 
ment, the  questions  of  evidence  decided  by  me,  and  the 
grounds  of  my  opinion  upon  the  law  arising  out  of  the  case. 
I  shall  pursue  the  order  observed  in  the  argument,  by  fairly 
reviewing  all  the  testimony,  and  considering  whether  the  ver- 
dict of  the  jury  was  against  law  and  evidence.  [His  honour 
then  stated  the  case  at  large.] 

On  this  evidence,  strengthened  by  the  declarations  of  the 
woman  in  the  extremity  of  her  labour,  that  the  defendant 
was  the  father  of  the  child,  the  jury  found  the  defendant 
guilty  of  the  fornication  and  bastardy  charged,  after  a  few 
minutes  consultation  at  the  bar.  The  child  had  come  to  its 
full  time,  and  no  peculiar  circumstances  having  attended 
the  mother  during  the  period  of  gestation,  in  the  usual 
course  of  nature  must  have  been  begotten  in  March  or 
April  1812.  Of  the  non-access  on  the  part  of  the  husband 
at  those  times,  there  was  strong  evidence  ;  and  the  many 
nocturnal  indiscreet  interviews  of  the  defendant  and  prose- 
cutrix,  under  the  most  suspicious  circumstances,  corres- 
ponding in  point  of  time  with  the  supposed  period  of  the 
child's  being  begot,  powerfully  corroborated  the  testimony 
of  the  mother. 

Upon  the  law  of  the  case  I  charged  the  jury  thus  :  Where 
man  and  wife  live  together  as  married  people  usually  do, 
a  third  person  may  readily  be  convicted  of  fornication  with 
the  wife,  but  I  know  not  how  he  could  be  convicted  of  bas- 
tardy with  her,  unless  the  bodily  impotence  of  the  husband 
could  be  fully  and  clearly  established.  Where  they  live 
separate  or  apart,  it  might  be  shewn  either  from  facts  or 


OF  PENNSYLVANIA.  289 

circumstances,  that  the  husband  had  not  access  to  the  wife;        1814. 
but  the  law  was  not  so  unreasonable  as  to  demand  proof  of     COMMON- 
non-access,  by  witnesses  who  were  with  her  every  minute  of      WEALTH 
the  time,  wherein  she   is  supposed  to  have  been  begotten 
with  child.  If  such  facts  and  circumstances  were  proved,  as 
would  induce  a  rational  well  grounded  belief  that  the  hus- 
band could  have  nad  no  access,  it  was  in  my  opinion  suffi- 
cient.    Upon  the  point  of  access  the  jury  were  the  proper 
judges  in  my  opinion. 

It  has  been  contended  by  the  defendant's  counsel,  that 
I  was  incorrect  in  this  charge,  inasmuch  as  nothing  short 
of  the  absolute  impossibility  of  access ,  will  rebut  the  legal 
presumption  of  access  in  the  conjugal  state.  To  establish 
this  position,  Lomax  v.  Hulmden  et  a/.,  2  Stra.  94O,  was  cited; 
but  there  the  legitimacy  of  the  lessor  of  the  plaintiff,  was 
found  by  the  jury,  on  the  ground  of  the  husband's  being 
frequently  at  London  where  the  mother  lived,  and  the  evi- 
dence of  inability  from  a  bad  habit  of  body  not  going  to  an 
impossibility,  but  only  an  improbability .  It  is  among  the  arca- 
na of  nature,  to  what  extent  debility  of  body  must  be  shewn, 
to  prevent  procreation.  It  would  puzzle  the  most  skilful  phy- 
sicians to  determine,  unless  in  extreme  cases,  this  particular. 

The  case  of  the  parishes  of  St.  George  and  St.  Marga- 
rets Westminster,  1  Salk.  123,  was  much  relied  on.  It  was 
there  held,  that  a  child  begotten  after  a  divorce  a  mensa  et 
thoro,  shall  be  taken  as  a  bastard  ;  but  if  baron  and  feme 
without  sentence  past,  part  and  live  separate,  the  children 
shall  be  taken  to  be  legitimate,  and  so  deemed  until  the  con- 
trary be  proved,  for  access  shall  be  presumed.  If  it  is  under- 
stood by  this  case,  that  a  husband  constantly  residing  in  one 
place  remote  from  his  wife,  shall  be  presumed  to  have  access, 
it  is  as  rank  as  the  exploded  doctrine  of  the  four  seas,  and 
partakes  of  all  its  absurdity.  And  it  is  obvious  that  a  sepa- 
ration of  man  and  wife,  arising  from  mutual  disgust  and 
aversion,  will  operate  as  powerfully  against  a  re-union,  as  the 
temporary  divorce  of  a  court  of  justice.  This  decision  took 
place  5  Anne ;  but  in  Pendrell  v.  Pendrell,  2  Stra.  925, 
(5  Geo.  2),  the  law  underwent  a  change,  and  was  finally  set- 
tled on  principles  of  sound  reason.  It  was  there  agreed  both 
by  court  and  counsel,  that  the  presumption  of  legitimacy  of 
a  child  born  during  marriage,  might  be  encountered  by  evi- 

VOL.  VI.  2O 


290 


CASES  IN  THE  SUPREME  COURT 


1814. 


COMMON- 
WEALTH 

v. 
SHEPHERD. 


dence  of  non-access ;  and  the  jury  were  at  liberty  to  consider 
of  the  point  of  access,  which  they  did  in  that  case,  and 
found  against  the  son  claiming  as  heir. 

In  1 734,  in  Sidney  v.  Sidney ,  3  Pr.  Wms.  275,  Lord 
Chancellor  Talbot  considers  this  doctrine  as  fully  establish- 
ed, and  such  I  take  to  have  been  the  received  opinion  in  the 
courts  of  law  of  this  government,  for  more  than  half  a  cen- 
tury. 

It  has  been  further  contended,  that  illegal  testimony  was 
received  during  the  trial.  I  overruled  without  hesitation  the 
declarations  of  the  husband  respecting  the  relative  situation 
of  himself  and  his  wife,  previous  to  and  in  the  month  of 
June  1812;  and  also  the  opinions  of  the  neighbours  as  to 
the  legitimacy  of  the  child,  and  the  improper  intimacies  of 
the  defendant  with  the  mother.  The  defendant's  guilt  was 
to  be  ascertained,  not  by  the  declarations  of  the  husband  or 
the  opinions  of  others,  but  by  facts  established  upon  oath. 
Of  these  decisions  the  defendant's  counsel  does  not  com- 
plain; but  insists  that  the  wife  ought  not  to  have  been  ad- 
mitted as  a  witness,  and  also  that  an  improper  question  was 
suffered  to  be  asked  of  her.  It  is  a  sufficient  answer  to  the 
first  objection,  that  no  exception  was  taken  to  her  testimony 
in  any  stage  of  the  cause,  and  now  it  comes  too  late,  accord- 
ing to  the  opinion  of  the  Court  in  Hecker  v.  Jarrett^ 
3  Blnney  404.  But  independently  thereof,  I  have  no  diffi- 
culty in  asserting,  that  she  was  a  competent  witness,  from 
the  necessity  of  the  case.  No  one  but  the  mother  could 
ascertain  who  was  the  father  of  her  child ;  such  criminality, 
from  the  imperious  law  of  nature,  is  perpetrated  secretly. 
The  opinion  of  this  Court  upon  full  argument  in  The  King- 
v.  Laughlin  M^Clean^  a  case  of  great  notoriety  some  years 
before  the  American  revolution,  fully  established  the  com- 
petency of  the  wife  (Mrs.  Osbourne)  in  cases  of  this  nature, 
and  many  instances  have  occurred  wherein  that  precedent 
has  been  followed.  Such  also  is  the  practice  in  England, 
under  orders  of  filiation  of  the  bastard  children  of  married 
women. 

A  detail  of  facts  is  necessary  to  ascertain,  whether  the 
question  proposed  to  Sarah  Myers  was  proper  or  not. 
After  testifying  what  I  have  before  stated,  several  pointed 
questions  were  proposed  to  her  by  the  defendant's  counsel. 
It  was  not  disclosed  in  the  first  instance  whether  she  was 


OF  PENNSYLVANIA.  291 

a  married  or  unmarried  woman.     Upon  her  cross  examina-        1814. 
tion,   she  declared    that  she  was  once  married  about  the      COMMON 
Christmas  of  1801,  and  that  she  did  not  know  whether  her      WEALTH 
husband  was  then  living  or  dead  ?  The  counsel  for  the  pro-  v" 

secution  then  asked  her,  when  did  you  see  your  husband  last  ? 
This  was  objected  to  upon  the  defendant's  part,  and  perti- 
naciously adhered  to  by  the  counsel  who  proposed  it.  I 
early  expressed  my  opinion  that  the  mother  could  not  be 
received  as  a  witness  to  bastardize  her  issue,  by  swearing 
that  the  husband  had  not  access  to  her.  The  question  was 
still  persisted  in,  and  a  lengthy  argument  ensued  which  put 
my  patience  to  the  test.  I  observed  "  that  it  was  unneces- 
"  sary  in  that  stage  of  the  cause  to  decide,  whether  when 
"  other  witnesses  had  sworn  to  circumstances  which  went 
u  to  prove  a  want  of  access,  the  wife  might  not  be  examined 
**  thereto,  (See  Cas.  Temp.  Hardw.  82,  83.  Rex  v.  Reading, 
"  8  Geo.  2.),  though  she  could  not  be  the  sole  witness. 
44  There  might  have  been  access,  although  the  wife  did  not 
"  see  her  husband;  and  the  question  did  not  appear  improper 
44  to  me,  from  the  questions  which  had  been  put  to  her  by 
41  the  defendant's  counsel."  Upon  my  deciding  on  the  ques- 
tion, the  witness  answered,  that  she  last  saw  her  husband 
upon  the  17th  of  March  1801. 

I  readily  disclaim  all  pretensions  in  the  reason  I  first 
gave,  as  to  the  access  of  the  husband,  to  a  pun  or  ivitti- 
cwm,  which  has  been  facetiously  ascribed  to  me  by  the 
ingenious  counsel  for  the  defendant.  I  have  not  sufficient 
penetration  to  discover  one  single  trait  or  feature  of  resem- 
blance however  clumsy,  which  may  entitle  the  remark  to 
either  of  those  denominations.  I  simply  meant  to  convey 
the  idea,  that  her  answer  could  not  necessarily  prove  want 
of  access  of  the  husband.  Although  I  admit,  that  one 
cannot  have  the  effect  of  evidence  in  obliquum,  which  he 
cannot  use  ex  directo,  yet  it  is  obvious  that  a  married 
woman  swearing  to  a  third  person  being  the  father  of  her 
child,  does  indirectly  convey  the  idea  of  the  want  of  access 
of  the  husband,  who  has  separated  from  her  company  for 
years,  at  least  pro  hoc  vice.  Such  however  is  the  common 
practice,  both  here  and  in  England.  But  there  is  another 
ground  upon  which  the  question  put  to  the  witness  may  be 
justified  in  my  idea.  The  answer  thereto  went  in  corrobora- 


292 


CASES  IN  THE  SUPREME  COURT 


1814. 


COMMON- 
WEALTH 

v. 
SHEPHERD. 


tion  of  hrr  former  assertion  to  the  defendant's  question, 
"that  she  did  not  know  whether  her  husband  was  then  living 
or  dead.  Thus  to  shew  the  consistency  of  a  witness,  what 
he  has  been  heard  to  say  without  oath  at  another  time,  may 
be  given  in  evidence  in  support  of  his  testimony,  or  to  dis- 
credit him  ;  yet  singly,  and  of  itself,  such  hearsay  would  be 
inadmissible. 

It  has  been  remarked,  that  it  would  be  highly  dangerous 
to  admit  testimony,  which  may  have  an  operation  on  the 
minds  of  jurors,  and  then  to  tell  them  they  shall  pay  no 
regard  to  it.  But  the  law  intends  that  jurors  pay  respect  to 
the  charge  of  the  Court,  and  we  know  that  the  fact  corres- 
ponds with  this  presumption.  The  same  observation  may 
be  made,  where  it  turns  out  upon  a  cross  examination,  that 
a  witness  who  has  been  sworn  is  found  out  to  be  interested, 
and  the  jury  are  told  that  they  should  pay  no  regard  to  his 
testimony  before  given.  Here  it  was  early  announced,  that 
the  wife's  testimony  could  not  be  available  to  prove  the 
non-access  of  her  husband;  and  the  jury  were  expressly 
charged,  that  they  should  lay  no  stress  on  her  answer  of 
not  having  seen  her  husband  for  above  eight  years,  as  dis- 
proving his  access. 

I  fear  I  have  been  tedious,  but  I  have  been  compelled 
thereto.  I  hasten  to  observe  that  I  see  no  ground  either  in 
law  or  fact,  which  would  justify  us  in  disturbing  this 
verdict. 

BRACKENRIDGE  J.  concurred  with  the  Chief  Justice. 
Judgment  for  the  Commonwealth. 


Philadelphia, 

April v  The  Commonwealth  against  WOLBERT  and  others. 

th*p^oEthe°nr"rHIS  was  *scire  facias  upon  a  judgment  obtained  on 
accounting  offi-  A  t^e  official  bond  ol  Frederick  Wolbert,  late  prothonotary 

i-ers  of  the  Com-          ,        _,  ,,    _  _,  r     .  r 

monweaith,  for  a  of  the  Court  ot  Common   Fleas  or  the  city  and  county  or 

year  and  upwards, 

lo  compel  the  prothonotary  of  the  Common  Pleas  to  settle  his  account  of  fees,  does  not  discharge 
the  sureties  in  the  official  bond  of  the  prothon-itary  ;  although  the  officer*  are  authorized  to  compel 
an  account  at  the  end  of  each  year,  and  to  enforce  payment  by  execution.  Quaere,  what  would  have 
been  the  l»w  if  the  officers  had  been  requested  to  proceed  by  the  sureties. 

The  bond  of  the  prbthonotary,  though  not  required  by  any  IHW,  is  binding  upon  him  and  his 
sureties  us  n  voluntary  bond  ;  and  bring  in  the  first  place  for  the  use  of  the  Commonwealth,  a  pay- 
ment under  it  to  an  individual  creditor  of  the  prothonotary,  is  at  the  surety's  peril.  The  Common- 
wealth must  be  first  satisfied  to  the  amount  ot  the  whole  penally. 


OF  PENNSYLVANIA. 


293 


Philadelphia*  for  money  due  to  the  Commonwealth  on  ac- 
count of  a  tux  on  the  fees  of  his  office. 

At  a  Nisi  Prius  in  March  last,  the  cause  was  tried  before 
the  Chief  Justice,  when  by  consent  a  verdict  was  entered 
for  the  Commonwealth  for  953  dollars  28  cents,  subject  to 
the  Court's  opinion  on  the  facts  in  evidence,  whether  the 
Commonwealth  was  entitled  to  recover  at  all,  and  if  at  all, 
how  much. 

Those  facts,  and  the  arguments  of  counsel,  are  fully 
stated  in  the  opinions  of  the  judges. 

Wallace  and  Ingersoll  argued  for  the  Commonwealth. 
Browne  and  Binney  for  the  sureties. 

TILGHMAN  C.  J.  Frederick  Wolbert  was  appointed  protho- 
notary  on  the  30ih  January  1809.  His  bond  is  dated  the  2d 
February  1809,  and  he  was  removed  from  office  the  25th 
April  1811.  It  is  the  duty  of  the  several  prothonotaries 
to  render  an  annual  account  of  the  fees  received  by  them, 
to  the  accounting  officers  of  the  Commonwealth ;  and 
those  officers  are  authorized  to  compel  the  rendering  of  an 
account,  and  the  payment  of  the  balance.*  On  the  14th  of 
March  1811,  F.  Wolbert  rendered  an  account  of  fees  receiv- 
ed from  26th  February  1810,  to  the  1st  of  October  of  the 
same  year.  At  the  same  time  he  wrote  a  letter  to  the  audi- 
tor general,  apologizing  for  not  having  rendered  an  account 
for  his  first  year,  ending  26th  February  1810,  and  praying 
a  short  indulgence.  This  Utter  was  sent  by  W.  Binder  one 
of  F.  Wolberfs  securities,  together  with  a  sum  of  money  to 
the  amount  of  the  balance  due  on  the  account  rendered.  As 
soon  as  this  account  was  settled  by  the  accounting  officers, 
Wolbert  was  removed  from  office.  An  action  was  commen- 
ced on  his  official  bond  to  the  next  term  of  the  Supreme 
Court,  which  was  tried  22d  June  1812,  and  the  sum  of 
896  dollars  70  cents,  found  to  be  due  to  the  Common- 
wealth. Judgment  was  entered  for  the  Commonwealth  for 
the  penalty  of  the  bond  at  December  term  1812.  On  this 
judgment  the  present  set.  fa.  was  brought  to  March  1813, 
for  the  recovery  of  the  balance  due  on  another  account  of 

*  Actsith  Oct.  1788.  <2  St.  Lawn  631.,  tth  Jpr.  1792.  4  Car.  and  Bio.  143., 
5th  Dec.  1801.  C  Car.  and  Bio.  208.,  2±th  Feb.  1806.  4  Smith's  L.  '27S. 


1814. 


COMMON- 
WEALTH 

u. 

WOLBERT 
etal. 


294 


CASES  IN  THE  SUPREME  COURT 


1814. 


COMMON- 
WEALTH 

v. 

WOLBRRT 

etal. 


F.   Wolbert^  for  fees  received  from  1st   October   1810  to 
"22d  April  1811. 

It  is  contended  in  the  first  place  by  the  counsel  for  the 
sureties,  that  they  are  discharged  by  the  laches  of  the  ac- 
counting officers,  in  not  calling  on  Wolbert  to  render  his 
account  immediately,  on  the  expiration  of  the  first  year. 
They  lay  it  down  as  a  principle,  that  were  the  obligee 
agrees  to  do  a  thing,  which  would  lessen  the  responsibility 
of  the  sureties,  and  omits  to  do  it,  they  are  discharged. 
Such  is  the  case  of  Montague  v.  Titcombe,  2  Vern.  518., 
where  one  being  bound  as  surety  for  the  good  conduct  of 
his  son,  who  was  an  apprentice  to  a  merchant,  and  the  mas- 
ter undertaking  to  see  the  cash  account  settled  monthly,  it 
was  held  that  the  surety  was  discharged  from  his  responsi- 
bility for  embezzlements  of  cash  by  the  apprentice,  after  the 
first  month,  because  the  master  had  failed  in  his  engage- 
ments to  see  the  cash  account  settled.  This  was  very  rea- 
sonable, because  if  the  master  had  performed  his  part  of  the 
contract,  it  is  probable,  that  the  evil  practices  of  the  appren- 
tice would  have  been  prevented.  But  although  the  Com- 
monwealth for  its  own  benefit  has  authorized  the  account- 
ing officers  to  compel  a  settlement  and  payment,  yet  it  never 
engaged  to  the  sureties,  that  this  should  be  done  at  any 
particular  time.  If  indeed  the  sureties  had  requested  those 
officers  to  proceed,  and  they  had  refused  or  neglected  to  do 
so,  the  case  would  have  borne  a  very  different  aspect ;  but 
until  such  a  case  arises  I  shall  give  no  opinion  on  it.  The 
case  of  The  People  v.  Jansen  and  others  was  also  cited  from 
7  Johns.  N.  T.  Rep.  332.  There  the  sureties  of  a  loan  officer 
were  held  to  be  discharged,  through  the  negligence  of  the 
public  officers,  whose  duty  it  was  by  the  law  under  which 
the  bond  was  taken,  to  examine  the  loan  officer's  accounts 
annually,  and  remove  him  in  case  of  default.  The  negligence 
in  that  case  was  very  extraordinary  indeed.  The  loan  offi- 
cer's accounts  were  not  examined  for  several  years,  and  he 
was  suffered  to  remain  in  office  ten  or  twelve  years  after 
making  default.  Meanwhile  the  surety  died,  without  having 
received  notice  of  the  default.  Add  to  this,  that  after  a  suit 
had  been  brought  against  the  principal,  while  in  good  cir- 
cumstances, indulgence  was  given  until  he  became  insolvent. 
But  how  different  was  that  case  from  the  present.  Frederick 


OF  PENNSYLVANIA.  295 

Wolbert  was  removed  from  office,  as  soon  as  it  was  ascer-        1814. 

tained  that  he  had  not  completely  accounted  for  all  fees  COMMON- 

received  up  to  the  time  of  the  rendering  of  his  account,  WEALTH 
which  was  but  a  little  more  than  two  years  from  his  appoint-        .    v< 

^\f  f\T  RERT 

ment ;  and  there  is  great  reason  to  suppose,  that  his  sure- 
ties were  acquainted  with  the  state  of  his  accounts,  because 
Binder  was  the  bearer  of  the  letter  of  the  14th  of  March 
1811,  in  which  indulgence  was  asked  on  the  account  for  the 
Jirst  year.  It  is  always  in  the  power  of  the  sureties  to  know 
whether  an  account  has  been  rendered ;  and  they  cannot  be 
said  to  act  with  reasonable  prudence,  if  they  do  not  make  this 
enquiry.  There  is  no  occasion  to  say  at  present,  whether  any 
and  what  degree  of  indulgence  to  the  principal,  will  discharge 
the  surety,  because  I  am  decidedly  of  opinion,  that  there  is 
no  pretence  for  a  discharge  from  any  indulgence  given  in 
this  case. 

It  was  once  decided  by  the  Court  of  Common  Pleas  for 
Northumberland  county,  that  the  bare  omission  to  bring 
an  action  on  a  bond  for  a  private  debt,  after  it  was  due, 
was  a  discharge  of  the  surety.  But  that  decision  was 
reversed  by  this  Court  without  hesitation,  because  there 
is  no  principle  of  law  or  equity,  which  calls  upon  the  obligee 
to  proceed  with  such  rigour  against  the  principal,  on  peril 
of  losing  his  security. 

It  has  been  determined  in  England,  that  where  the  credi- 
tor, without  consulting  the  surety,  enlarges  the  time  of  pay- 
ment, so  as  to  put  it  out  of  his  power  to  proceed  against 
the  principal  if  required  so  to  do  by  the  surety,  this  shall 
operate  as  a  discharge,  because  the  debt  is  put  upon  a  dif- 
ferent footing  from  that  on  which  it  originally  stood,  and 
from  that  on  which  the  surety  had  a  right  to  expect  it 
would  remain.  But  it  is  against  all  equity  and  reason  to 
say,  that  the  security  is  discharged  by  the  mere  omission 
to  bring  suit,  which  makes  not  the  least  alteration  in  any 
part  of  the  agreement  express  or  implied.  Nor  do  I  under- 
stand that  any  such  principle  is  contended  for  in  the  case 
of  a  private  debt ;  for  certainly  it  would  introduce  a  scene 
of  distress,  not  called  for  by  public  convenience  or  expedi- 
ency, or  required  by  the  fair  construction  of  the  contract. 

A  distinction  is  taken  between  a  private  debt,  and  one 
clue  from  a  public  officer,  who  by  law  may  be  compelled  to 


296 


CASES  IN  THE  SUPREME  COURT 


1814. 


COMMON- 
WEALTH 
•v. 

WOLBERT 

etal. 


account.  But  granting  that  such  distinction  is  not  without 
foundation,  yet  it  would  require  much  stronger  circumstances 
than  this  case  presents,  to  operate  as  a  discharge.  It  would  be 
essential,  that  the  indulgence  should  be  without  the  approba- 
tion of  the  surety,  which  I  do  not  take  to  be  the  case  here,  and 
that  alone  is  decisive.  I  say,  I  do  not  take  it  to  be  the  case, 
because  when  I  see  Binder  carrying  the  money  due  on  the 
account  rendered,  and  the  letter  b\  which  Wolbert  prayed 
indulgence  on  the  account,  embracing  the  first  period  after 
his  appointment,  I  cannot  but  conclude,  that  he  (Binder}  so 
far  from  thinking  himself  discharged,  joined  with  Wolbert 
in  the  petition  for  further  indulgence. 

Another  question  is  made  in  this  case.  Supposing  the 
Commonwealth  entitled  to  a  recovery,  to  what  amount  shall 
it  be.  The  defendants  claim  credit  for  a  payment  made  to 
Joseph  Par  ham,  who  brought  suit  on  the  same  bond  22d 
May  1812.  The  suit  was  submitted  to  arbitration,  and 
the  arbitrators  made  an  award  in  favour  of  the  plaintiff  for 
456  dollars  70  cents,  which  was  filed  2d  July  1812,  and  of 
course  by  virtue  of  our  act  of  assembly  had  the  effect  of  a 
judgment  on  that  day,  so  that  Parham's  suit  was  instituted 
after  that  of  the  Commonwealth,  but  his  judgment  was 
prior. 

We  are  to  consider  then,  what  is  the  nature  of  the 
official  bond  of  the  prothonotary,  and  for  whose  benefit  was 
it  given.  After  a  careful  examination,  it  appears  that  there 
was  no  act  of  assembly  requiring  such  bond.  Before  the 
adoption  of  the  present  constitution,  it  was  not  the  custom 
for  the  prothonotaries  to  give  bond  ;  but  since,  the  governor 
has  required  them  of  his  own  motion.  Supposing  them  then 
to  be  voluntary  on  the  part  of  the  obligors,  yet  being  given 
for  a  useful  purpose,  they  are  valid  in  law.  But  for  whose 
use  are  they  ?  The  bond  in  this  case  is  given  to  the  Common- 
wealth for  the  use  thereof.  These  are  the  expressions,  and 
taken  literally,  they  indicate  a  use  for  the  Commonwealth 
only.  But  perhaps  the  use  may  be  extended  to  private  per- 
sons, who  may  be  injured  by  the  official  misbehaviour  of 
the  prothonotary,  because  the  condition  extends  to  all  the 
duties  of  his  office.  We  have  an  old  act  of  assembly  made 
in  the  year  1713,  by  the  14th  section  of  which  (1  Smith''!. 
Laivs>  85)  it  is  enacted,  that  all  bonds  given  by  direction  of 


OF  PENNSYLVANIA. 


297 


any  law,  by  persons  in  office,  for  the  due  execution  of  their 
respective  offices,  shall  be  tor  the  use  of,  and  in  trust  for  the" 
persons  concerned,  and  the  mode  of  proceeding  on  such 
bonds  is  pointed  out.  But  this  act  does  not  comprehend  the 
bond  in  question,  because  it  is  not  given  by  direction  of  any 
law.  It  private  persons  have  any  interest  in  it  then,  it  must 
be,  because  from  its  nature,  it  appears  to  be  in  trust  for  them. 
It  is  unnecessary  however  to  decide  that  point,  if  the  Com- 
monwealth has,  as  I  am  clearly  of  opinion  it  has,  a  prefer- 
ence for  its  whole  claim,  against  all  private  persons,  not 
only  because  the  bond  is  expressed  to  be  for  its  use,  but 
because  the  first  suit  was  commenced  for  the  Common- 
wealth ;  and  the  defendants  shall  not  avail  themselves  of  their 
negligence  or  collusion  with  Parhamy  in  suffering  him  to 
obtain  judgment  in  his  action.  It  was  the  duty  of  the  defend- 
ants to  plead  before  the  arbitrators,  that  a  prior  action  had 
been  brought  for  the  use  of  the  Commonwealth,  and  was 
then  depending,  and  if  the  arbitrators  had  overruled  this 
plea,  an  appeal  should  have  been  entered.  So  that  if  the  de- 
fendants suffer  by  Parharrfs  judgment,  they  have  nobody  to 
blame  but  themselves. 

Upon  the  whole,  it  appears  that  the  Commonwealth  ob- 
tained judgment  against  the  defendants  for  the  penalty  of 
the  bond,  and  thai  there  is  no  act  of  assembly,  by  which  any 
private  person  is  let  in.  Neither-  is  there  any  principle  of 
common  law,  or  of  equity,  by  which  the  Commonwealth 
will  be  deprived  of  the  benefit  of  this  judgment  to  its  full 
extent,  as  long  as  it  has  a  just  demand  unsatisfied,  arising 
out  of  a  breach  of  the  bond.  But  it  has  been  proved,  that 
there  is  a  just  demand  unsatisfied  for  fees  received  by  Fre- 
derick Wolbert,  to  the  full  amount  of  the  penalty  of  the  bond, 
and  something  more.  I  am  therefore  of  opinion,  that  the 
Commonwealth  should  recover  all  that  part  of  the  penalty, 
which  remains  after  deducting  the  amount  recovered  in  the 
first  action. 

YEATES  J.  The  facts  of  this  case  have  been  fully  detailed 
by  the  Chief  Justice.  The  counsel  on  both  sides  agree  that 
no  act  of  assembly  can  be  found,  directing  that  the  protho- 
notaries  of  the  Courts  of  Common  Pleas,  should  give  bonds 
with  sureties  for  the  faithful  performance  of  their  duties. 

VOL.  VI.  2  P 


1814. 


COMMON- 
WEALTH 

v. 

WOLBERT 
et  al. 


298 


CASES  IN  THE  SUPREME  COURT 


1814. 


COMMON- 
WEALTH 
v. 

WOLBERT 

etal. 


Hence  it  has  been  asserted  by  one  of  the  defendants'  coun- 
"  sel,  that  the  bond  given  in  this  case  not  being  authorized  by 
law,  is  not  binding  against  the  surviving  party. 

It  is  evident  in  the  present  instance,  that  the  taking  of 
such  a  bond  was  a  prudent  and  necessary  precaution  to 
guard  the  public  interest,  and  on  these  terms  Mr.  Wolbert 
was  commissioned.  It  is  therefore  valid  at  common  law 
as  a  voluntary  obligation,  and  falls  within  the  principle  laid 
down  in  Johnson  v.  Lasene,  2  Ld.  Raym.  1459,  2  Stra. 
745,  wherein  it  was  held,  that  though  an  executor  is  not 
obliged  to  give  bail  in  error,  yet  the  Court  may  well  take 
it  j  and  if  he  will  voluntarily  enter  into  such  a  recognizance, 
it  shall  bind  him.  But  the  question  cannot  come  into  consi- 
deration in  the  present  suit,  judgment  having  been  rendered 
on  the  verdict  obtained  on  the  official  bond,  which  thereby 
transit  in  rem  judicatam.  The  merits  of  that  judgment 
while  it  remains  unreversed,  cannot  be  overhawled. 

The  official  bond  was  given  to  the  Commonwealth  in  the 
penalty  of  4266  dollars,  66  cents,  for  the  use  of  the  Com- 
monwealth, conditioned  for  the  faithful  performance  of  the 
duties  of  Wolbert,  as  prothonotary.  Judging  from  these 
expressions,  we  are  bound  to  presume,  that  the  immediate 
object  of  the  bond  was  the  security  of  the  monies  which 
might  fall  due  to  the  state,  and  I  deem  it  unnecessary  from 
the  facts  in  this  case,  to  decide  how  far  suitors  in  court  were 
protected  thereby. 

The  attorney  general  instituted  an  action  on  this  bond 
returnable  to  December  term  1811,  on  which  a  trial  was  had 
at  Nisi  Prius,  upon  the  plea  of  payment,  on  the  22d  June 
1812,  and  a  verdict  found  for  the  penalty  of  the  bond,  and  the 
jury  further  certified  that  896  dollars  87  cents,  were  then  due 
to  the  Commonwealth.  In  December  term  following,  judgment 
was  rendered  on  this  verdict.  A  second  settlement  was  made 
by  Wolbert  to  the  accounting  officers  of  the  state,  and  on  the 
19th  October  1811,  a  sum  of  842  dollars  14|  cents,  was 
found  due  to  the  Commonwealth,  of  which  Wolbert  had  re- 
ceived due  notice.  The  attorney  general  afterwards  moved, 
that  he  should  be  permitted  to  take  out  execution  for  this 
sum  under  the  judgment  which  he  had  obtained;  but  it  ap- 
pearing to  the  Court  that  other  creditors  claimed  under  the 


OF  PENNSYLVANIA.  299 

judgment,  the  Court  directed  thatascire facias  should  issue  in  1814. 

order  that  all  the  facts  might  come  regularly  before  a  jury  on  COMMON- 

trial.    An  amicable  scire  facias  was  therefore  filed  by  mutual  WEALTH 

consent,  returnable  to  March  term  1813.  Previously  thereto,  v' 

i  ii/r   i  '  11-  •  r       •*  OLBKRT 

Robert  Wallace  and         • Maloney  issued  their  writs  of         et  aj 

scirc  facias  returnable  to  the  same  term,  for  two  sums  of 
money  paid  into  the  hands  of  the  prothonotary,  by  order  of 
the  Court  of  Common  Pleas.  Upon  the  trial  of  the  present 
cause,  the  defendant  gave  in  evidence  the  payment  of  four 
sums  of  money,  besides  the  sums  certified  by  the  former 
verdict  for  the  use  of  the  state,  amounting  in  the  whole  to 
3329  dolls.  65|  cts.  leaving  a  balance  of  the  penalty  937  dolls, 
and  a  half  cent.  Besides  which  it  was  shewn,  that  Joseph 
Far  ham  brought  on  the  22d  May  1812,  a  suit  on  the  same 
official  bond,  to  July  term  following,  which  proceeded  to  ar- 
bitration, and  that  the  report  thereon  was  filed  on  the  2d 
July  1812,  (before  the  return  of  the  process)  finding  for  the 
plaintiff  456  dollars  7O  cents,  upon  which  judgment  was  en- 
tered on  the  same  day,  in  pursuance  whereof,  509  dollars  8 
cents  was  paid  by  the  surety  to  the  plaintiff,  including  the 
costs,  on  the  12th  November  1812.  On  the  whole  facts  dis- 
closed, it  was  submitted  to  the  Court  in  bank  to  decide, 
whether  the  Commonwealth  was  entitled  to  recover  any 
thing,  and  how  much  in  this  suit. 

The  surviving  surety  has  contended,  that  he  is  discharged 
from  all  responsibility  by  the  negligent  conduct  of  the  officers 
of  the  Commonwealth,  and  that  in  all  events  he  is  entitled 
to  credit  for  the  sum  paid  to  Parham.  The  private  creditors 
have  insisted  that  if  they  should  not  be  deemed  entitled  to 
preference  as  to  the  remaining  balance  of  the  penalty,  they 
are  at  least  entitled  to  come  in  pro  rata. 

Upon  the  first  objection  it  has  been  urged,  that  the  exe- 
cutive magistrate  should  have  removed  Wolbert  from  office 
immediately  on  his  first  failure  to  settle  his  annual  account 
in  the  treasury,  according  to  the  provisions  of  the  act  of 
assembly,  24th  February  1806  ;  that  the  existing  law  gave 
full  power  to  the  accounting  officers  to  oblige  him  to  settle 
his  accounts ;  and  that  the  case  before  the  court  must  be  con- 
sidered in  the  same  light,  as  if  all  these  laws  had  been  incor- 
porated in  the  condition  of  the  obligation.  Here  has,  it  is 
said,  been  a  gross  omission  and  neglect,  by  proceeding  in 


300 


CASES  IN  THE  SUPREME  COURT 


1814. 


COMMON- 
WEALTH 

v. 

WOLBERT 
etal. 


the  first  instance  for  the  debt  incurred  during  the  last  year 
ot  his  office;  and  where  an  obligor  gives  time  for  payment 
to  his  principal  debtor,  his  sureties  are  disch  trgrd  in  equity. 
The  case  was  compared  to  The  People  v.  Jansen  and  others, 
7  Johns.  332,  wherein  it  was  adjudged  that  sureties  in  an 
official  bond  may  urge  laches,  in  not  proceeding  against  the 
principal  according  to  the  provisions  of  the  law,  by  way  of 
defence.  I  answer,  that  the  case  in  Johnson  was  one  of  the 
most  gross  neglect  for  ten  years,  during  which  the  surety 
was  kept  in  entire  ignorance;  and  the  act  itstlf  imperiously 
directed  the  officer's  removal.  The  delay  here  did  not  « x- 
ceed  twelve  months,  and  the  law  required  no  removal.  Mr. 
Binder  also  managed  all  the  business  of  Wolbert  with  the 
treasury,  and  must  have  known  all  the  transactions.  He 
must  be  presumed  to  have  concurred  in  asking  indulgence 
from  the  accounting  officers.  The  rule  in  "  quity  in  the  Eng- 
lish cases,  is  admitted  as  to  indulgence  given  to  the  principal 
debtor  ;  but  I  do  not  know  that  we  have  extended  these 
cases  in  their  full  latitude.  A  bill  will  lie  in  chancery  by  a 
surety  to  compel  a  creditor  to  sue  his  principal;  and  equity 
will  act  on  his  refusal  or  neglect  to  sue,  particularly  where 
the  condition  of  the  surety  is  thereby  deteriorated.  The 
surety  here  has  no  such  remedy,  he  must  pay  the  money 
on  the  bond,  and  take  an  assignment.  Should  he  demand  a 
suit  against  the  principal  in  desperate  circumstances,  I 
should  huld  him  bound  to  tender  an  indemnification.  That 
a  surety  is  not  discharged  by  the  obligee  of  a  bond  not  pro- 
ceeding against  the  principal,  when  the  same  becomes  due, 
is  I  believe  generally  understood  in  this  state.  It  was  so 
decided  some  years  ago  in  Delajf\.  Turbctfs  Ex'rs.  at  a  Cir- 
cuit Court  in  Lancaster,  and  not  long  since  in  the  middle 
district  by  the  whole  Court  in  bank,  in  the  case  of  Simpson 
and  others,  upon  full  argument  on  a  writ  of  error.  In  this 
instance  it  was  stated  that  the  debtor  was  solvent,  when  the 
debt  became  payable.  I  would  not  however  be  understood 
to  say  that  in  no  given  case  the  surety  in  a  bond  under  all 
circumstances  would  be  responsible. 

Besides,  an  insuperable  difficulty  lies  in  the  defendants' 
way,  on  this  branch  of  the  argument.  The  cause  was  tried 
under  the  plea  of  payment,  and  no  notice  of.  this  special 
matter  was  given,  agreeably  to  the  rule  of  this  Court.  It 


OF  PENNSYLVANIA. 


301 


cannot  be  pretended,  that  the  conduct  of  the  officers  of  go- 
vernment could  be  available  at  common  law  under  this  plea. 
It  would  operate  as  a  complete  surprize  on  the  attorney 
general.  Who  can  tell  what  he  might  bring  forward  if  this  de- 
fence was  disclosed  in  due  time?  He  might  shew  that  the  most 
vigilant  attention  was  paid  by  the  accounting  officers,  in  the 
discharge  of  their  duties  in  this  instance,  and  that  the  delay 
and  indulgence  granted  were  justified  by  existing  circum- 
stances, and  even  sought  for  by  the  very  sureties  who  now 
set  it  up  as  a  ground  of  defence.  In  this  point  of  view  the 
ground  taken  would  not  discharge  the  surety  from  respon- 
sibility* 

I  consider  the  payment  under  Portion's  judgment  as  vo- 
luntary and  not  compulsory.  The  proceedings  were  wholly 
illegal.  Two  suits  of  the  same  nature  cannot  be  maintained 
on  the  same  bond.  The  defendants  knew  they  had  been  sued 
in  the  first  action  to  December  term  1811,  and  were  bound 
to  plead  the  former  suit  still  depending,  upon  which  a  ver- 
dict had  been  taken  to  the  action  brought  to  July  term  1812. 
Admitting  that  this  bond  would  enure  for  the  use  ot  pri- 
vate suitors  in  court  as  well  as  of  the  Commonwealth,  con- 
cerning which  I  express  no  opinion,  Parham  could  not 
compel  an  arbitration  to  ascertain  the  quantum  of  his  de- 
mand in  the  action  which  he  had  commenced,  but  was  left 
to  his  remedy  by  scire  facias  upon  the  judgment  on  the 
verdict,  in  the  same  manner  that  Wallace  and  Maloney  have 
done.  The  attorney  general  brought  the  first  suit  upon  the 
official  bond,  and  obtained  judgment  on  his  verdict.  To  the 
next  term  he  issued  this  scire  facias,  and  has  proceeded  as 
quickly  as  the  law  would  permit  him.  It  is  not  competent 
to  Parham  to  deprive  the  Commonwealth  of  the  fruit  of  her 
officer's  vigilance,  and  by  a  short  cut  to  justice,  unknown  to 
the  law,  to  frustrate  the  effect  of  this  scire  facias. 

I  have  already  said,  that  the  evident  intention  of  the 
bond  was  to  secure  the  interests  of  the  Commonwealth,  and 
therefore  can  see  no  reason  why  judgment  should  not  be 
rendered  on  this  scire  facias  for  937  dollars  and  half  a  cent, 
the  balance  due  on  the  penalty  of  this  official  bond. 

BRACKENRIDGE  J.  concurred. 

Judgment  for  the  Commonwealth. 


1814. 


COMMON- 
WEALTH 
v. 

WOLDERT 

etal. 


302  CASES  IN  THE  SUPREME  COURT 

1814. 

DUFFIELD  against  SMITH  and  others. 


April  4. 

an  action  ofTre's"  r  ""'HIS  was  an  action  of  trespass,  assault  and  battery,  and 
pass  atrainst  the  X  faise  imprisonment,  ajrainst  Isaac  Deaves  president  of 

office;  8  of  a  court  . 

martial  for  impri-a  militia  court  martial,  Joseph  Lloyd  the  judge  advocate, 
ti^fnot  appear- an(*  J°^n  Smith  marshal  of  the  Pennsylvania  district,  bail 
ing  that  they  had  3QOO  dollars ;  and  it  came  now  before  the  Court  upon  a  rule 

exercised  their  .  r 

power,  whether   to  shew  the  cause  of  action,  and  why  the  defendants  should 

Sul!fed,riSal'ynot  be  discharged  on  common  bail, 
oppression. 

The  plaintiff's  affidavit  set  forth,  that  some  weeks  since 
he  was  served  with  a  notice  signed  by  Deaves,  requiring 
him  to  appear  before  a  court  martial,  to  answer  for  a  dis- 
obedience of  orders  of  the  President  of  the  United  States,  in 
not  appearing  at  a  muster  of  militia,  held  on  the  19th  of 
April  1813.  He  did  not  appear  as  required  by  the  notice. 
He  was  shortly  afterwards  called  on  by  Deaves,  with  a  note 
from  Lloyd  the  judge  advocate,  requesting  his  attendance 
before  the  court  martial.  This  note  he  also  disregarded.  In 
consequence  of  this  a  guard  of  soldiers  was  sent  to  his 
dwelling  house  the  next  morning ;  and  the  plaintiff  being 
absent,  they  searched  all  the  rooms  of  the  house,  and  the 
cellar,  in  order  to  arrest  him.  The  guard  returned  the  next 
morning,  and  the  plaintiff  seeing  them,  concealed  himself  in 
an  adjoining  house.  They  again  went  through  part  of  the 
plaintiff's  house,  and  threatened  to  billet  themselves  in  his 
house,  and  to  eat  and  drink  at  his  expense,  until  he  surren- 
dered himself,  and  appeared  before  the  court  martial.  After 
the  guard  retired,  he  went  to  the  court  martial.  Deaves  pre- 
sided, and  Lloyd  acted  as  judge  advocate.  The  latter  inform- 
ed him  that  he  was  brought  there  under  a  charge  of  disobe- 
dience of  orders  of  the  President  of  the  United  States,  and 
inquired  whether  he  had  any  thing  to  offer  in  extenuation. 
The  plaintiff  answered  that  he  was  in  the  service  of  the 
bank  of  Pennsylvania  at  the  time,  had  a  family  to  support, 
and  could  not  attend  the  muster  of  the  militia.  Some  weeks 
after,  the  plaintiff  went  with  the  marshal's  deputy  to  the 
marshal,  upon  the  subject  of  the  fine  assessed  upon  him  by 
the  court  martial,  and  the  marshal  told  him  he  must  pay  it, 
or  go  to  jail.  1'he  deputy  afterwards  called  upon  the  plain- 


OF  PENNSYLVANIA. 


303 


tiff  at  a  stage  office  where  he  was  employed,  and  told  him 
he  had  orders  from  the  marshal  to  take  him,  and  that  he " 
had  better  go  with  him  and  see  the  marshal.  He  went.  The 
marshal  repeated  that  he  must  pay  the  fine  or  go  to  jail, 
that  his  deputy  would  go  with  the  plaintiff  among  his 
friends  to  try  to  get  the  money.  The  plaintiff  requested  the 
marshal  to  call  at  the  stage  office  at  five  o'clock,  it  then 
being  dinner  time.  The  marshal  refused.  The  deponent  then 
left  the  marshal's  office  in  custody,  and  went  to  the  stage 
office  where  he  remained  about  an  hour,  and  was  then  taken 
towards  the  jail.  After  going  some  distance,  he  returned 
with  the  deputy  to  the  stage  office,  and  sent  for  the  proprie- 
tor to  ask  his  advice.  The  proprietor  offered  to  pay  the  fine. 
The  plaintiff  said  he  preferred  consulting  counsel,  which  he 
was  permitted  to  do  ;  and  counsel  having  advised  him  not 
to  pay,  he  was  committed  to  prison.  After  he  was  in  prison, 
the  proprietor  of  the  stage  office  paid  the  fine  of  3O  dollars, 
and  the  keeper's  costs,  and  the  plaintiff  was  discharged. 

The  affidavit  then  proceeded  to  state  that  the  plaintiff  was 
a  man  without  any  property,  which  he  had  stated  to  Deaves 
before  appearing  at  the  court  martial,  and  to  the  marshal 
before  the  arrest  j  that  he  did  not  attend  the  muster  on  the 
19th  of  j4/>r7/1813,  nor  did  he  at  any  time  enroll  himself  as 
a  draft  in  the  service  of  the  United  States  ;  and  as  he  had 
been  advised,  the  proceedings  against  him  were  not  sanc- 
tioned by  law. 

Two  questions  were  made  in  the  case;  1.  Whether  the 
court  martial  was  authorized  by  law  to  inflict  the  fine 
upon  the  plaintiff.  2.  If  not,  whether  the  plaintiff  was 
entitled  to  bail.  On  the  first  question,  as  a  majority  of  the 
Court  gave  no  opinion,  and  the  point  involved  several  acts 
of  congress  and  of  this  Commonwealth,,  an  official  corres- 
pondence, and  a  variety  of  military  orders,  it  is  unnecessary 
to  state  the  argument.  On  the  second,  supposing  the  Court 
to  have  had  no  authority, 

Gibson  and  Hallowell  for  the  plaintiff,  contended,  that  as 
it  was  a  case  involving  the  liberty  of  the  citizen,  and  the 
sanctity  of  his  home,  which  had  been  brutally  violated  by 
the  guard,  and  as  the  invasion  proceeded  from  a  military 
court  whose  encroachments  were  always  watched  with 


1814. 


DUFFIELD 
V. 

SMITH 
et  al. 


304 


CASES  IN  THE  SUPREME  COURT 


1814.       jealousy,  and   punished  with  exemplary  rigour,  it  was  the 
DUFFIELD    duty  of  the  Cour;,  exercising  a  just  discretion,  to  hold  the 
defendants  to  bail.     They  cited    1  Sellon  35.,  Frye  v.  Sir 
Chaloner  Ogle  (a),  2  M* Arthur  242.,  Lehman  v.  Allen  (£). 


V. 

SMITH 
et  al. 


Browne  and  Dallas  on  the  same  point  answered,  that  the 
general  rule  was  against  holding  to  bail  in  actions  of  tres- 
pass; and  that  the  Court  exercised  its  discretion  in  ordering 
it  only  in  flagrant  cases,  as  of  an  outrageous  assault  and 
battery,  or  when  there  had  been  an  oppressive  exercise  of 
military  power  as  in  Fryers  case,  or  where  the  defendants 
were  about  to  leave  the  state.  1  Crompton  35.  In  the  present 
instance  there  was  no  feature  of  oppression,  but  on  the  con- 
trary a  disposition  manifest  throughout  to  perform  the  duty- 
incumbent  on  the  defendants,  in  a  lenient  manner.  The  con- 
duct of  the  guard  was  unauthorized. 

TILGHMAN  C.  J.  I  think  it  unnecessary  in  the  present 
stage  of  the  action,  to  give  an  opinion,  whether  the  proceed- 
ings of  the  court  martial  have  been  conformable  to  law.  Let  it 
be  supposed  that  the  plaintiffhas  shewn  cause  of  action.  That 
is  putting  the  matter  on  the  most  favourable  footing  for 
him.  The  general  rule  is,  that  in  actions  of  trespass,  bail  is 
not  demandable,  because  there  is  no  standard  by  which  the 
damages  can  be  measured.  But  there  are  exceptions  to  this 
rule.  One  is,  where  the  defendant  is  about  to  depart  out  of 
the  jurisdiction  of  the  court.  Another  is,  where  there  has 
been  a  violent  battery,  in  which  the  plaintiff  may  sometimes 
swear  to  damages  to  a  certain  amount,  and  it  may  be  evident 
from  a  view  of  the  wounds,  that  considerable  damage  must 
have  been  sustained.  There  are  other  cases  where  it  is  pre- 
sumable that  large  damages  will  be  given,  because  the  sub- 
ject may  have  been  discussed  in  an  action  against  others  for 
a  similar  trespass.  Such  was  the  case  of  a  court  martial  of 
which  Sir  Chaloner  Ogle  was  president,  (cited  by  the  plaintiff's 
counsel)  whose  proceedings  had  been  proved  to  be  unjust, 
arbitrary  and  oppressive.  The  case  before  us  comes  within 
none  of  these  exceptions.  The  court  martial  was  not  con- 
vened by  the  defendants  through  a  wanton  spirit  of  mis- 
chief, but  in  obedience  to  the  orders  of  the  governor  of  the 


(a)  1 M* Arthur  229. 


(i)  1  mis.  160. 


OF  PENNSYLVANIA. 


commonwealth ;  nor  in  the  course  of  their  proceedings  has 
the  plaintiff  been  treated  by  them  with  contumely,  insolence  " 
or  oppression.  On  the  contrary,  nothing  offensive  has  been 
shewn  in  the  conduct  of  the  president  of  the  court  or  the 
judge  advocate;  and  the  marshal  behaved  with  great  kind- 
ness, in  suffering  his  deputy  to  attend  the  plaintiff  to  the 
houses  of  his  friends,  in  order  to  borrow  money  to  pay  the 
fine.  One  of  these  friends  offered  money,  which  the  plain- 
tiff refused,  and  went  to  jail  by  advice  of  counsel,  in  order 
to  lay  a  foundation  for  damages  in  this  action.  I  pass  no 
censure  on  the  plaintiff  for  choosing  to  go  to  jail,  he  had  a 
right  so  to  do;  and  it  is  highly  important  to  the  citizens  of 
this  Commonwealth  to  have  it  judicially  decided,  whether 
the  acts  of  this  court  martial  are  warranted  by  law.  But  I 
see  nothing  in  this  case,  which  should  take  it  out  of  the 
general  rule  with  regard  to  special  bail.  It  is  impossible  to 
say  what  damages  a  jury  may  think  proper  to  give.  Where 
national  liberty  is  invaded,  high  damages  are  sometimes 
given  by  way  of  example,  though  the  plaintiff  has  suffered 
very  little  injury  ;  on  the  other  hand,  a  jury  might  think  the 
rights  of  the  nation  sufficiently  vindicated  by  small  damages 
for  the  first  offence,  against  persons  who  had  conducted 
themselves  with  mildness  and  decency  in  a  doubtful  case, 
where  they  were  called  upon  to  act  by  superior  authority. 
It  is  not  for  me  to  anticipate  the  verdict,  nor  do  I  think  it 
prudent  to  say,  until  the  cause  comes  to  a  hearing,  any  thing 
which  may  have  a  bearing  against  either  party  with  respect 
to  damages.  I  am  of  opinion,  that  there  is  no  reason,  why 
the  Court  should  in  this  instance  depart  from  the  general 
rule,  which  permits  an  appearance  without  bail  in  actions 
of  trespass.  But  I  desire  it  to  be  understood,  that  my  opi- 
nion would  be  different,  should  a  case  be  presented,  where  the 
members  of  a  court  martial  had  conducted  themselves  inso- 
lently, rudely  or  oppressively  towards  those,  who  by  their 
religious  principles  are  known  to  be  conscientiously  opposed 
to  the  bearing  of  arms.  On  such  persons  the  law  itself  ope- 
rates with  sufficient  rigour,  and  should  not  be  aggravated 
by  unnecessary  severity.  No  case  of  that  kind  has  yet  oc- 
curred, and  I  sincerely  hope  none  ever  may. 
VOL.  VI.  2  Q 


1814. 


DUFFIELD 
V 

SMITH 

et  al. 


306 


CASES  IN  THE  SUPREME  COURT 


1814. 


DUFFIELD 
V. 

SMITH 

«-t  al. 


YEATES  J.  I  cannot  reconcile  my  mind  to  the  exercise  oi 
l^e  Povvers  °f  courts  martial  over  private  citizens,  or  militia 
men,  who  have  not  mustered  or  been  in  actual  service,  con- 
sistently with  the  provisions  of  the  constitution  of  the  United 
States,  or  of  this  Commonwealth.  Nor  can  I  see  in  the  act  of 
congress  of  28th  February  1795,  any  authority  delegated  to 
such  courts  martial,  to  compel  such  persons  to  appear  before 
them,  to  answer  for  a  supposed  delinquency,  by  the  instru- 
mentality of  an  armed  force. 

At  the  same  time,  that  I  feel  it  to  be  my  duty  thus  pub- 
licly to  avow  my  sentiments,  I  cannot  avoid  saying,  that  I 
can  discover  no  tincture  of  wanton  oppression  in  this  in- 
stance by  the  military  tribunal.  The  expressions  of  the  file 
of  men  who  were  sent  to  apprehend  the  plaintiff  in  his  lodg- 
ings, were  in  my  idea  highly  reprehensible  ;  and  if  such  con- 
duct had  been  authorized  by  the  orders  of  the  court  martial, 
I  should  have  no  hesitation  as  to  the  holding  of  the  defend- 
ants to  bail.  The  case  before  us  presents  a  question  of  great 
importance  to  the  rights  of  the  citizens,  but  unattended 
with  any  circumstances  of  aggravation  fairly  imputable  to 
the  defendants.  The  plaintiff  intimidated  by  the  acts  of  the 
guard,  surrendered  himself  to  the  court  martial.  It  is  our 
duty  to  decide  on  the  motion  according  to  the  known  rules 
of  law,  applicable  to  the  circumstances  of  the  particular  case. 
In  matters  of  mere  tort,  bail  is  not  of  course,  but  may  be 
directed  by  the  special  order  of  a  judge,  or  of  the  whole 
Court.  In  the  exercise  of  an  impartial  legal  discretion,  they 
will  either  order  or  refuse  bail,  according  to  their  view  of 
the  individual  wrong  which  is  the  subject  of  the  suit.  When 
the  injury  complained  of  is  not  gross  or  enormous,  the  cir- 
cumstance of  the  defendants  having  expressed  no  intention 
to  leave  the  government,  to  whose  laws  the  plaintiff  has  ap- 
pealed, will  always  have  great  weight. 

Judging  by  these  rules,  I  concur  in  opinion,  that  the  de- 
fendants should  be  discharged  on  common  bail. 

BRACKENRIDGE  J.  was  of  the  same  opinion  with  the 
Chief  Justice. 

Discharged  on  common  baiL 


OF  PENNSYLVANIA.  307 

1814. 
WEN  BERG  against  HOMER.  Philadelphia, 

°  t  ndaif, 

April  15. 

¥"N  this  case  the  writ  was  in  trespass  for  an  assault  and    if  the  writ  is  in 
^   battery,  and  the  declaration  contained  three  counts,  d»e  JSEKb  ^rt 
first  two  for  assault  and  battery,  and  the  third  for  the  miscon-in  tn-spass  and 

r     ,,.._.  .     part  in  case,  the 

duct  of  the  captain  as  master  or  the  ship  Piscataqua,  in  defendant  cannot 
causelessly  dismissing  the  plaintiff  from  his  post  of  mate  of™ 


that  ship.    Plea  non  Cltl.  Jur)  have  found  in 

his  favour  upon 
the  count  in  case. 

The  cause  was  tried  at  a  Nisi  Prius  before  Teates  J.  in 
January  last,  when  the  jury  found  for  the  plaintiff  on  the 
first  two  counts,  damages  250  dollars,  and  for  the  defendant 
on  the  third. 

Browne  for  the  defendant  moved  for  a  new  trial,  on  the 
ground  of  excessive  damages,  and  in  arrest  of  judgment,  in 
consequence  of  the  variance  between  the  writ  and  declara- 
tion, and  the  mis-joinder  of  counts.  He  contended  that 
although  the  jury  had  found  for  his  client  on  the  third 
count,  yet  the  plaintiff  under  it  had  introduced  evidence 
which  influenced  the  jury  to  assess  extravagant  damages  on, 
the  others. 

Shoemaker  contra,  answered  that  the  third  count  was  now 
immaterial  in  consequence  of  the  finding,  and  that  under 
this  circumstance  the  Court  would  disregard  the  variance. 
1  Chitty  248,  254,  401.,  3  Saund.  171  b.  c. 

TILGHMAN  J.  There  is  no  reason  to  arrest  the  judgment, 
because  the  verdict  on  the  bad  count  was  for  the  defendant. 
As  to  damages,  although  it  is  possible  that  the  jury  may 
have  been  influenced  in  some  degree  by  the  evidence  appli- 
cable to  the  other  counts,  yet  we  ought  not  to  suppose  so, 
unless  it  is  very  plain.  Judge  Teates  does  not  think  the 
damages  so  improper  as  to  authorize  a  new  trial,  supposing 
them  to  have  been  grounded  solely  on  the  evidence  applica- 
ble to  the  first  and  second  counts ;  and  it  appears  to  us  all 
in  the  same  light.  We  are  therefore  of  opinion  that  judg- 
ment should  be  entered  on  the  verdict. 

Judgment  for  plaintiff. 


308  CASES  IN  THE  SUPREME  COURT 

1814. 


FRENCH  against  REED  and  FORDE. 


Philadelphia, 
Wednesday, 

Apni 'jo.  "  "^HIS  was  an  action  on  the  case  against  the  defendants, 

who  kinder  no  *°r  not  executing  the  plaintiff's  order  for  insurance, 

obligation  to  exe-     The  Narr  contained  two  counts  :  The  first  stated,  that  the 

cute  ;in  ortl  rot         ,          .  _    .     .  ,  .  . 

insm-vjce.  never-  plaintiff  being  owner  of  goods  to  the  value  of  20,OOO  dol- 
takl^uT'lTJxe-  lars  on  noai"d  ^e  Drig  Hiram,  at  Reedy  Island,  bound  to  the 
cutes  it  detective- island  of  Hispaniolo.  and  two  ports  of  that  island,  the  de- 

ly.heis  answtt-a  f  \    .  .  ... 

bie  for  the  loss.  lendants  at  the  request  or  the  plaintiff,  and  in  consideration 
of  the  plaintiff's  promising  to  pay  them  a  reasonable  reward 
and  commission,  undertook  to  procure  insurance  to  be  made 
as  aforesaid  ;  that  the  said  brig  proceeded  to  Cake  Francois, 
and  in  proceeding  thence  to  Gonaives,  the  second  port  to 
which  the  defendants  undertook  to  procure  insurance,  she 
was  captured,  and  with  her  cargo  lost;  that  the  defendants 
neglected  to  procure  the  said  insurance,  whereby  &c.  The 
second  count  laid  the  promise  to  procure  insurance  from 
Cape  Francois  to  Gonaives. 

The  cause  was  tried  before  the  Chief  Justice  in  February 
last,  when  a  verdict  was  found  for  the  plaintiff,  damages 
13,867  dollars  19  cents  ;  and  upon  a  motion  by  the  defen- 
dants for  a  new  trial,  the  case  was  reported  as  follows : 

The  plaintiff,  having  shipped  on  board  the  Hiram  an  in- 
voice for  his  own  account  and  risk  of  20,208  dollars,  and 
being  about  to  sail  in  the  vessel,  on  the  5th  of  December 
1804,  wrote  a  letter  to  the  defendants  from  Reedy  Inland, 
requesting  them  to  effect  insurance  immediately  upon  goods, 
valued  at  20,000  dollars,  as  by  a  bill  of  lading  enclosed,  out 
only,  to  two  ports  in  the  island  of  Htspantola;  property  war- 
ranted American,  and  premium  to  be  covered. 

1  here  had  been  previous  dealings  between  the  parties, 
but  at  this  time  the  plaintiff  had  no  funds  in  the  defendants' 
hands,  but  on  the  contrary  was  their  debtor,  and  his  circum- 
stances were  not  good. 

On  the  10th  of  December,  the  defendants  wrote  to  R. 
Fleming^  the  general  agent  and  attorney  in  fact  of  the  plain- 
tiff, informing  him  that  the  plaintiff  had  requested  insurance, 
but  unless  they  were  made  safe,  they  must  decline  acting. 
That  a  note  for  the  premium  must  be  given,  and  they  gave 
him  that  notice  that  he  might  see  what  could  be  done.  They 
would  make  enquiry  among  the  offices  about  the  premium. 


OF  PENNSYLVANIA. 


309 


On  the  13th  of  December ',  they  wrote  to  the  plaintiff,  in- 
forming him  that  the  offices  asked  20  per  cent,  for  two  ports, 
and  \\ould  not  take  less  than  15  per  cent,  to  one  port.  That 
he  had  forgotten  the  note  for  the  premium  payable  in  three 
months,  and  that  the  Hiram  would  not  return  in  time  to 
pay  the  note.  They  said  they  were  anxious  to  make  the  in- 
surance, and  had  applied  to  his  agent  Fleming  to  make  an 
arrangement  upon  the  subject,  but  that  difficulties  had  ari- 
sen ;  and  they  then  mentioned  certain  conditions*  on  which 
they  were  willing  to  undertake  to  make  insurance. 

On  the  ITth  ol  December,  the  defendants  had  3500  dollars 
written  by  private  underwriters  for  the  plaintiff,  at  1O  per 
cent,  from  Philadelphia  to  Cape  Francois  or  Port  de  Paixin 
Hispaniola. 

On  the  24th  they  caused  8OOO  dollars  to  be  underwritten 
by  the  Union  Insurance  Company,  at  1 1  per  cent,  from  Phi- 
ladelphia to  one  port  in  Hispaniola,  the  goods  valued  at 
23,000  dollars. 

On  the  27th,  they  wrote  him,  advising  of  their  letter 
of  the  13th,  and  of  his  omission  to  leave  the  premium  note  ; 
that  Fleming  would  not  make  the  arrangement  required ; 
that  they  had  insured  to  one  port  out  as  above,  and  expect- 
ed to  get  the  remainder  done  at  New  Tork  and  Baltimore 
for  11  per  cent.;  that  he  must  exert  himself  to  remit  thtm, 
and  that  they  had  passed  their  own  notes  for  the  premium. 

On  the  18th  of  January  1805,  they  wrote  him  again,  in- 
forming him  that  in  consequence  of  the  premiums  to  Hayti 
having  risen,  they  had  waited  for  a  fall,  and  had  fortunately 
heard  of  his  arrival  at  Cape  Francois,  before  they  made 
any  further  insurance. 

On  the  24th  of  December  18O4,  the  plaintiff  wrote  from 
Gonaives,  that  he  had  come  from  the  Cape  there,  giving  an 
account  of  some  articles  he  had  sold  to  the  administration  at 
the  former  place ;  that  he  should  return  to  the  Cape  the  next 
day,  where  he  should  sell,  and  purchase  coffee  at  Gonaives. 

On  the  4th  of  January  he  wrote  from  Cape  Franfois, 
saying  that  he  had  landed  the  greater  part  of  his  cargo 
there,  and  had  sold  some  which  the  defendants  had  in  her ; 
and  requested  them  to  insure  no  part  of  his  property  at  pre- 
sent further  than  Gonaives.  He  wished  them  to  insure 
10,OOO  dollars  home  in  the  Hiram. 


1814. 


FRENCH 

v. 

REED 
et  al. 


310  CASES  IN  THE  SUPREME  COURT 

1814.  On  the  2d  and  6th  of  February  he  wrote  from  Gonaives, 

FRENCH  mentioning  that  the  brig  had  left  the  Cape  under  British 
v.  convoy,  and  that  he  was  afraid  she  was  captured  by  a  French 

REED  privateer.  In  case  of  capture  he  should  abandon  to  the  un- 
derwriters. That  it  was  very  unfortunate  for  him,  as  more 
than  half  of  his  goods  were  on  board,  a  good  part  ofrvhich  he 
had  sold  to  the  administration  at  Gonaives.  He  requested 
them  to  abandon  the  moment  the  capture  was  ascertained. 

On  the  24th  of  February,  he  wrote  from  Cape  Franfois 
stating  his  surprize  to  find  that  they  had  insured  only 
11,500  dollars,  and  to  one  port;  that  on  reflection  he  was 
convinced  they  must  afterwards  have  extended  it  to  two 
ports  for  the  whole  amount  ordered  by  him.  Ha  then  men- 
tioned the  amount  of  goods  remaining  on  board  the  Hiram, 
that  she  was  missing,  and  that  he  abandoned. 

On  the  26th  of  February  the  defendants  wrote  him  that 
they  had  received  advices  of  the  brig's  sailing  under  convoy 
from  Cape  Francois,  and  that  they  would  endeavour  to  in- 
sure 10,000  dollars  from  the  Cape  to  Gonaives,  but  were  not 
sure  it  could  be  done ;  and 

On  the  4th  of  March  they  wrote,  that  by  some  of  the 
offices  a  premium  of  2O  per  cent,  was  asked  for  the  risk  with 
convoy;  that  the  Union  asked  17 3,  and  they  had  offered  15, 
which  they  thought  would  have  been  taken,  but  a  report  of 
the  capture  arrived,  which  prevented  any  thing  from  being 
done. 

The  Hiram  was  captured  on  the  28th  of  January  1805, 
about  three  leagues  trom  Gonaives,  by  a  French  privateer, 
at  which  time  she  had  on  board  an  invoice  of  9O38  dollars 
92  cents  belonging  to  the  plaintiff,  which  was  totally  lost. 
The  defendants  had  goods  of  their  own  on  board,  which 
were  also  lost;  but  on  these  they  had  effected  insurance  to 
two  ports,  by  which  they  were  covered. 

Three  questions  were  raised  upon  the  trial.  1.  As  to  the 
mode  of  estimating  the  damages,  if  the  verdict  should  be 
for  the  plaintiff,  the  defendants  claiming  a  premium  of  insu- 
rance, the  usual  deduction  of  two  per  cent.,  and  an  allowance 
for  the  goods  sold  to  the  administration  of  Gonaives.  2.  As 
to  the  warranty  of  American  property,  the  defendant's  coun- 
sel contending  that  the  warranty  was  broken,  or  at  least  the 
risk  increased  by  that  sale.  3.  As  to  the  defendants'  liability, 


OF  PENNSYLVANIA. 


311 


the  same  counsel  arguing  that  the  defendants  were  not 
bound,  because  they  had  not  undertaken  to  execute  the 
order,  but  on  the  contrary  had  expressly  declined  it ;  and 
that  afterwards  they  had  gratuitously  effected  a  different 
insurance,  not  under  the  order,  but  as  a  favour,  to  diminish 
as  far  as  they  could,  the  inconvenience  arising  from  their 
refusal  to  execute  the  order. 

The  Chief  Justice  charged  the  jury 

1.  That  as  the  plaintiff  gave  orders  to  cover,  the  jury,  if 
they  found  in  his  favour  should  give  him  the  cost  of  the 
goods,  without  deducting  the  premium  or  two  per  cent. 

2.  That  the  warranty  was  not  broken,  if  the  sale  to  the 
French  administration  at  Gonaives  was  made  on  condition 
of  being  delivered  there ;  but  if  the  jury  should  think  that 
the  contract  was  completed  by  delivery  at  Cape  Francois, 
then  the  warranty  was  broken. 

As  to  the  increase  of  risk,  the  Chief  Justice  did  not  think 
it  had  been  proved.  The  French  captured  all  property,  to 
whomsoever  it  belonged,  found  on  a  voyage  to  or  from  His- 
paniola;  and  as  to  the  English,  they  were  on  terms  of  friend- 
ship with  the  administration  at  the  Cape  and  Gonaives,  as 
appeared  by  their  granting  convoy. 

3.  That  an  agent  was  bound  to  insure  :   1.  Where  the  prin- 
cipal had  funds  in  his  hands.    2.  Where  the  principal  con- 
signed goods  to  him,  and  he  accepted  the  bill  of  lading. 
3.  Where  he  had  been  in  the  habit  of  insuring  for  his  prin- 
cipal.   That  the  defendants  stood  in  neither  of  these  predi- 
caments, and  therefore  were  not  bound  to  insure.     Under 
the  circumstances  of  this  case,  if  the  defendants  had  said 
they  would  insure  to  one  port  in  Hispaniola,  and  nothing 
more,  because  they  had  no  funds,  his  honour  did  not  think 
it  ought  to  be  inferred  against  their  express  declaration, 
that  they  undertook  to  execute  the  whole  order.  But  if  from 
the  expressions  of  the  defendants,  or  the  circumstances  of 
their  conduct,  the  plaintiff  might  have  been  fairly  led  to 
conclude  that  they  had    undertaken   the   execution  of  the 
order,  in  such  case  the  jury  would  be  warranted  in  saying 
that  they  did  undertake  it,  and  holding  them  responsible  for 
the  damages  occasioned  by  omitting  to  perform  any  part  of 
it.     In  other  words  they  would  consider  the  defendants  a* 


1814. 


FRENCH 

v. 

REED 
et  al. 


312 


CASES  IN  THE  SUPREME  COURT 


1814. 


FRENCH 

v. 
REED 

et  ul. 


standing  in  the  place  of  insurers,  and  charge  them  to  the 
extent  of  the  plaintiff's  order  of  insurance. 

No  opinion  was  intimated  on  the  main  point,  namely 
whether  the  defendants  did  or  did  not  undertake  to  execute 
the  order.  That,  which  was  the  turning  point  ol  the  cause, 
was  left  to  the  jury. 

The  jury  gave  the  amount  of  the  invoice,  9038  dollars 
and  interest. 

The  motion  for  a  new  trial  was  argued  hv  Sergeant  and 
Levy  for  the  defendants,  and  by  Rawle  and  Ingersoll  lor  the 
plaintiff. 

TILGHMAN  C.  J.  This  is  an  action  for  not  executing  the 
plaintiff's  order,  to  have  an  insurance  effected,  or  rather  for 
executing  the  order  differently  from  the  plaintiff's  direction. 
The  order  was  to  effect  insurance  from  Philadelphia  to  the 
island  of  St.  Domingo,  and  two  ports  in  the  said  island.  The 
defendants  had  an  insurance  made  to  one  port  only,  and  the 
vessel  and  cargo  were  captured  on  the  voyage  from  the  first 
port  where  she  arrived  in  safety,  to  the  second.  The  plain- 
tiff wrote  the  order  at  Reedy  Island,  when  he  was  just  on 
the  point  of  sailing  for  St.  Domingo,  so  that  there  was  no 
time  for  the  defendants  to  return  him  an  answer.  There  had 
been  an  intimacy  and  dealings  in  business  between  the  plain- 
tiff and  defendants  for  some  time  before  this,  but  at  the  date 
of  the  order  for  insurance  there  was  a  balance  of  account 
due  to  the  defendants,  nor  was  there  any  circumstance  ex- 
isting from  which  the  plaintiff  had  a  right  to  demand  of  the 
defendants  to  have  the  insurance  effected.  There  is  no  doubt 
therefore,  but  that  the  defendants  might  have  refused  to  tx- 
ecute  the  order.  But  instead  of  refusing,  they  seemed  will- 
ing to  execute  it  in  part  at  least,  and  whether  they  did  not  act 
in  such  a  manner  as  to  make  themselves  liable  for  the  non- 
execution  of  the  whole,  was  the  question  submitted  to  the 
jury.  It  was  one  of  those  questions,  which,  although  to  be 
solved  principally  from  letters  which  passed  between  the 
parties,  was  yet  so  interwoven  with  the  defendants'  actions, 
as  to  render  it  proper  for  the  Court  to  submit  the  whole  to 
the  jury,  with  this  direction  in  point  of  law,  that  although 
the  defendants  were  under  no  obligation  to  execute  the 
plaintiff's  order,  yet  if  they  did  undertake  it,  and  executed  it 


OF  PENNSYLVANIA. 


313 


badly,  they  were  answerable  for  the  consequences  (a).  The 
]ury  could  be  under  no  embarrassment  with  regard  to  the 
/aw,  but  the  matter  of  fact  was  not  without  difficulty  ,*  and  so 
it  appeared  on  a  former  occasion,  when  a  jury,  after  hearing 
the  evidence  and  arguments  of  counsel,  were  discharged  by 
consent,  because  they  could  not  agree.  Insurance  is  so  essen- 
tial to  commerce,  and  it  is  so  necessary  for  one  merchant  to 
rely  on  another  for  executing  his  orders  on  that  subject, 
that  the  law  ought  not  to  be  relaxed.  It  is  said  to  be  a  hard 
case,  and  in  one  sense  it  is  hard*  The  defendants  receive  no 
value  for  the  damages  awarded  against  them.  But  that  is  no 
reason  for  setting  aside  the  verdict.  Nor  do  I  see  how  with 
propriety  it  can  be  set  aside.  If  the  defendants  had  refusec^ 
at  once  to  effect  the  insurance,  there  would  have  been  an 
end  of  the  business.  But  they  intermeddled  so  much,  as  to 
render  it  doubtful  how  far  they  would  go.  It  does  not  ap- 
pear that  if  they  had  refused,  there  were  any  other  persons 
who  would  have  taken  upon  themselves  to  execute  the  plain- 
tiff's order,  and  yet  it  it  is  possible  there  might  have  been ; 
and  I  do  not  think  myself  justified  in  saying  peremptorily, 
that  there  would  not  have  been  such  persons,  for  the  plain- 
tiff  had  some  friends  besides  the  defendants,  and  after  in- 
telligence had  been  received  of  the  brig's  arrival  at  ihejirst 
port)  there  would  have  been  no  great  difficulty  in  procuring 
an  insurance  to  the  second.  In  fact  the  defendants  were  en- 
gaged in  a  negotiation  for  that  purpose,  and  would  have 
effected  it,  if  they  had  not  been  too  tardy  ;  but  the  matter  was 
kept  in  suspense,  until  news  of  the  capture  arrived.  I  am 
sorry  for  the  defendants'  loss,  for  they  have  brought  it 
upon  themselves  by  their  willingness  to  oblige  the  plaintiff. 
But  the  plaintiff  has  his  rights,  of  which  the  Court  cannot 
injustice  deprive  him.  The  cause  was  submitted  to  the  jury 
upon  a  point,  on  which  merchants  best  understand  their  own 
modes  of  doing  business.  The  verdict  ought  to  stand,  unless 
we  clearly  perceive  it  to  be  wrong.  This  would  be  going 
further  than  I  think  myself  warranted  in  doing.  My  opinion 
therefore  is  against  a  new  trial. 

YEATES  J.  It  cannot  be  denied,  that  the  verdict  in  this  case 
operates  with  peculiar  severity  on  the  late  firm  of  Reed  and 

(a)  Vid  1  ,1/arsA.  298.,  4  Johnt.  84.,  5D,VE.  150. 

VOL.  VI.  2  R 


1814. 


FRENCH 

v. 

RKED 
etal. 


1814. 


FRENCH 
f. 

REED 
etal. 


CASES  IN  THE  SUPREME  COURT 

Forde.  They  did  not  fall  within  either  class  of  cases,  where- 
in a  correspondent  is  generally  bound  to  make  insurance 
for  his  principal.  They  had  ho  funds  of  the  plaintiff  in  their 
hands,  such  was  not  the  usual  course  of  dealing  between 
them,  nor  had  they  accepted  bills  of  lading  upon  a  consign- 
ment of  goods  to  them.  Yet  if  by  the  commercial  law  they 
have  incurrred  a  responsibility  under  all  the  circumstances, 
and  the  verdict  is  not  contrary  to  plain  evidence,  we  should 
not  be  justified  in  awarding  a  new  trial. 

The  law  on  which  the  plaintiff  relied  to  support  his  re- 
covery, has  not  been  questioned  by  the  defendants*  counsel. 
If  a  party  who  makes  an  engagement  to  perform  a  business 
gratuitously,  enters  upon  the  execution  of  the  business,  and 
does  it  amiss  through  the  want  of  due  care,  by  which  damage 
ensues  to  the  other  party,  an  action  will  lie  for  this  misfeas- 
ance. Thornbury  v.  Day,  4  Johns.  96.  But  it  has  been  con- 
tended that  this  legal  proposition  is  not  applicable  to  the 
facts  in  this  case. 

It  is  certain  that  the  plaintiff  wrote  to  Reed  and  Forde 
from  Reedy  Island,  on  the  5th  of  December  1804,  directing 
them  to  make  insurance  immediately  upon  goods  on  board 
the  Hiram  for  Hispaniola,  valued  at  20,OOO  dollars,  and 
cover  the  premium,  out  only  to  two  ports  in  Hispaniola ; 
and  that  this  letter  came  to  hand.  The  defendants  shewed 
great  anxiety  to  carry  the  order  of  the  plaintiff  into  effect. 
They  wrote  to  the  general  agent  and  attorney  in  fact  of  the 
plaintiff,  stating  to  him  their  want  of  funds,  offered  to  raise  the 
premium  supposed  to  be  at  least  3000  dollars,  and  informing 
him  they  must  decline  insuring,  unless  they  were  made  safe. 
Several  arrangements  were  made  for  this  purpose,  but  they 
were  rendered  abortive.  By  their  letter  of  the  13th  of  De- 
cember, they  tell  the  plaintiff  that  he  had  forgot  to  leave  a 
note  for  the  premium  payable  in  three  months,  and  that  the 
Htram  would  not  return  in  time  to  put  them  in  funds,  and 
they  mention  the  conditions  on  which  they  would  make  the 
insurance.  Had  the  defendants  adhered  to  their  resolution  of 
not  insuring,  unless  funds  were  furnished  to  them  for  their 
indemnification,  all  would  have  been  well.  But  on  the  ITth 
of  December  they  effected  a  policy,  wherein  3500  dollars  were 
subscribed  bv  private  underwriters  on  the  goods  to  Cape 
Francois  or  Port  de  Pa'ix  in  Hispanic/las  and  on  the  24th  of  the 


OF  PENNSYLVANIA*  315 

same  month,  another  policy  of  80OO  dollars  in  the  office  of        1814. 
the   Union  Insurance  Company  to  one  port  in  Hispaniola. 
These  act's  did  not  conform  to  the  orders  they  had  receiv-  t». 

ed,  which  specified  that  the  insurance  was  to  be  made  on  REED 
the  goods  valued  at  20,000  dollars,  covering-  the  premium,  to 
two  ports  m  hispaniola,  without  naming  either  of  them. 
Upon  the  27  h  ot  December,  Reed  and  Forde  inform  French, 
of  what  they  had  doni-,and  express  their  hope  of  having  the 
remainder  done  at  New  Tork  and  Baltimore  at  a  premium 
of  eleven  per  cent.  In  another  letter  of  the  26th  of  February 
1805,  they  say  they  shall  endeavour  to  insure  10,OOO  dol- 
lars from  the  Cape  to  Gonaives,  but  probably  it  could  not 
be  done ;  and  again  on  the  4th  of  March,  they  mention  that 
the  president  of  one  of  the  insurance  companies  had  demand- 
ed a  premium  of  171  on  that  risk  and  they  had  offered  15, 
which  they  thought  he  would  have  taken,  if  a  report  of  the 
capture  of  the  Hi  ram  had  not  arrived. 

Whether  the  defendants  undertook  the  effecting  of  this 
insurance  in  pursuance  of  the  plaintiff's  orders,  was  the 
point  on  which  the  cause  turned  ;  and  this  was  fairly  sub- 
mitted by  the  Chief  Justice  to  the  jury,  to  be  decided  by 
them  from  the  language  of  the  defendants'  letters,  and  their 
whole  conduct,  without  any  intimation  of  his  opinion.  The 
question  of  f;ict  and  law  was  so  intimately  blended,  that  I 
do  not  feel  myself  authorized  to  pronounce  that  the  jurors 
were  mistaken  in  the  inferences  which  they  drew  from  a 
lengthy  correspondence,  and  a  variety  of  circumstances  dis- 
closed therein.  I  am  of  opinion  that  the  rule  to  shew  cause 
bhould  be  discharged. 

BRACKENRIDGE  J.  delivered  his  opinion  contra;  but  a 
part  of  it  having  been  mislaid,  the  reporter  is  unable  to  pub- 
Ijsh^it, 

Judgment  for  the  plaintiff. 


6b  316 
3s  r  39 

316  CASES  IN  THE  SUPREME  COURT 


1814. 


6sr420 
6sr582 
14  62 
32  366 


Philadelphia,  ,„,  •  TT  it  55      40 

Wednesday,  VVAKELY  against    HART    and  Others.          61    359 

April  20. 


rTHHIS  was  an  action  of  trespass,  assault  and  battery,  and 
ny  without  war-      _L  faise   imprisonment,  tried  before   Teates  J.  at  a  Nisi 

rant,  notwith- 

standing sec.  7.     Prius  in  January  last. 

art.  9.  of  the  con- 
stitution ;  and  a 

private  person  The  suit  was  against  John  Hart,  George  Peters,  John 
hit  peril  :  but  Fries  junior,  and  Jacob  Wenn.  Hart  and  Peters  pleaded 
tju<e  re  if  he  can  not  guilty  with  leave  to  justify,  and  on  this  issue  went  to 

arrest  for  misde-  , 

meaner,  e.  g.  for  trial.  The  other  two  defendants  did  not  plead  at  all,  nor  was 
goods."  judgment  taken,  against  them  by  default. 

If  a  piamtifFin-       jt  appeared  in  evidence,  that  the  plaintiff  had  been  arrest- 
eludes  persons  in 
the  suit,  against    ed  by  Hart  the  high  constable  of  the  city,  assisted  by  the 

dence  is  offered,  others,  upon  information  that  he  had  stolen  a  watch  j  and  he 

they  may  be  wit-  was  ta^en  to  jail  without  any  warrant.     The  stolen  watch 

nesses  ;  so  if  after  J  .  .    .  • 

suing  several  for   was  found  in  his  possession.     He  could  give  no  account  of 

Le0proceeds^oS'  ^»  ana<  there  were  several  circumstances  both  as  to  his  cha- 

"«"e  atml  tmlf  racter  and  conduct,  raising  a  presumption  of  his  guilt. 

them,  but  does  The  defendants  offered  in  evidence  the  record  of  an  in- 

others  to  pfead,  dictment  and  proceedings  in  the  Quarter  Sessions  of  Phila- 

be^itnesEes^  delphia  county,  by  which  it  appeared  that  a  bill  for  larceny 

for  the  former,  of  the  watch,  with  a  count  for  receiving  it  knowing  it  to 

concerned.  Th™  have  been  stolen,  was  found  against  the  plaintiff,  who  had 

interest  of  those  been  a(imitted  to  bail  ;  and  that  he  made  default  in  his  ap- 

not  on  trial,  is  in  .  r 

the  question,  not  pearance,  by  which  his  recognizance  was  forfeited.  The 
plaintiff's  counsel  objected  to  the  evidence,  but  the  Court 
admitted  it. 

The  defendants'  counsel  also  offered  Fries  and  Wenn  as 
witnesses  for  the  other  defendants  j  the  judge  admitted  them, 
notwithstanding  an  objection  by  the  plaintiff. 

The  judge  at  the  conclusion  instructed  the  jury,  that  if 
upon  all  the  facts,  they  should  be  of  opinion  that  the  plain- 
tiff either  stole  the  watch,  or  received  it  knowing  it  to  have 
been  stolen,  they  should  find  for  the  defendants  ;  which  they 
accordingly  did,  and  the  plaintiff  now  moved  for  a  new  trial. 

Phillips  for  the  plaintiff.  The  evidence  of  the  record  was 
inadmissible,  first  because  it  was  irrelevant.  The  defendants 
could  have  no  justification  without  a  warrant  on  oath,  the 
spirit  of  the  seventh  section  of  the  ninth  article  of  the  con- 


OF  PENNSYLVANIA. 


317 


stitution,  prohibiting  searches,  seizures,  or  arrests,  without 
probable  cause  shewn  to  some  magistrate  to  ground  a  war- 
rant. Secondly,  if  the  defendants  could  arrest  for  felony,  the 
record  was  not  evidence,  because  it  did  not  shew  a  convic- 
tion, but  an  indictment  merely,  and  on  the  oath  of  Hart. 

The  other  defendants  were  not  witnesses,  because  there 
was  one  writ  and  count  against  all,  all  were  summoned,  and 
implicated  in  the  transaction.  Lloyd  v.  Williams  (a),  Hill 
v.  Flemming  (£).  One  defendant  in  an  indictment  cannot  be 
a  witness  for  another,  until  he  is  acquitted  or  convicted. 
Their  pleading  jointly  or  separately,  makes  no  difference. 
The  People  v.  Bill  (c).  The  damages  here  must  have  been 
joint.  Hill  v.  Goodchild  (J),  Shultz  v.  Hunter  (<i). 

The  charge  was  clearly  wrong,  because  though  an  indi- 
vidual may  arrest  at  his  own  peril  for  a  felony ,  there  is  no 
authority  for  arresting  on  account  of  receiving  stolen  goods, 
which  is  only  a  misdemeanor. 

J.  R.  Ingersoll  contra. 

The  record  was  admissible,  because  connected  with  the 
plaintiff's  forfeiting  his  recognizance,  it  was  strong  evidence 
of  his  guilt,  and  justified  the  defendants.  The  constitution 
guards  against  the  use  of  general  warrants  ;  it  leaves  the 
right  of  individuals  to  arrest  for  a  felony  as  it  stood  before. 
Without  such  a  right,  criminals  would  frequently  escape. 
It  is  sanctioned  by  undoubted  authority.  1  Burn's  Justice 
133.  Arrest  3.,  and  the  authorities  there  cited.  The  defen- 
dants then  had  a  right  to  arrest  at  their  peril ;  and  they  for- 
tified the  proof  of  a  felony  by  the  record  of  indictment  for 
the  offence,  and  the  plaintiff's  flying  for  it. 

The  other  defendants  were  witnesses,  because  the  plain- 
tiff went  to  issue  and  trial  against  two,  and  took  no  judg- 
ment by  default  against  the  others,  which  would  have  been 
his  course  in  order  to  exclude  them.  2  Tid.  8O2,  3., 
2  Sound.  3O1  a.  Note  4.  Lloyd  v.  Williams,  is  not  law.  The 
rule  in  this  state  is  as  it  was  laid  down  in  Stockholm  v. 
Jones  (/");  if  the  witness  has  no  interest  in  the  verdict,  the 
objection  goes  to  his  credit.  Here  the  verdict  upon  the  issue 
trying,  could  neither  involve  nor  exonerate  the  defendants, 
who  were  not  on  trial. 


1814. 


WAKELT 

v. 

HAHT 
etal. 


(a)  Cas.  Tcmt>.  Hardv.  123. 
(4)  Id.  264. 


(c)  10  Johns.  95. 
(O  5  Burr.  2590. 


(e)  2  Bro~one<25j. 
(/)  10  Johns.  21. 


318  CASES  IN  THE  SUPREME  COURT 

1814k  The  charge  was  right.     A  private  person  may  arrest  fov 

WAKELY     felony »  °r  'or  a  high  misdemeanor  so  nearly  bordering  upon 

v.  felony  as  this.    1  Burn.  Just.  140.    But  if  not,  the  evidence 

HART        shewed  a  felony  ;  and  the  Court  will  not  send  the  cause 

back,  if  they  see  that  the  same  verdict  must  be  given; 

TILGHMAN  C.  J.  The  first  question  is  as  to  the  admis- 
sion of  the  record. 

The  defendants  contend,  that  having  reason  to  think  the 
plaintiff  guilty  of  larceny,  they  arrested  him  as  they  had  a 
right  to  do,  at  their  ptril,  so  that  it  was  incumbent  on  them 
to  prove  him  guilty  ot  larceny,  in  order  to  make  good  their 
defence.  They  do  not  say  that  the  bare  finding  of  a  bill  is 
proof  of  guilt,  but  that  the  bill  connected  with  the  circum- 
stance of  withdrawing  from  trial,  was  evidence  proper  to  be 
laid  before  the  jury.  If  proving  the  plaintiff  guilty  of  larceny 
will  justify  the  arrest  made  by  the  defendants,  there  can  be 
no  doubt  but  that  the  record  was  evidence,  because  flying 
from  justice  is  a  strong  indication  of  guilt.  But  the  plainuff 
insists,  that  by  the  constitution  of  this  state,  no  arrest  is 
lawful  without  a  warrant^  issu<  d  on  probable  cause,  support'' 
edby  oath.  Whether  this  be  the  true  construction  of  the  con- 
stitution is  the  main  point  in  the  cause*  It  is  declared  in  the 
ninth  article,  sect.  7.,  "  that  the  people  shall  be  secure  in. 
41  their  persons^  houses,  papers,  and  possessions  from  unrea- 
*'  sonable  arrests  ;  and  that  no  warrant  to  search  any  place  or 
" seize  any  person  or  thing,  shall  issue  without  describing 
"  them  as  nearly  as  may  be,  nor  without  probable  cause  sup- 
"  ported  by  oath  or  affirmation*"  The  provisions  of  this  sec- 
tion, so  far  as  concern  warrants,  only  guard  against  their 
abuse  by  issuing  them  without  good  cause,  or  in  so  general 
and  vague  a  form,  as  may  put  it  in  the  power  of  the  officers 
who  execute  them,  to  harass  innocent  persons  under  pre- 
tence of  suspicion  ;  for  if  general  warrants  are  allowed,  it 
must  be  left  to  the  discretion  of  the  officer,  on  what  persons 
or  things  they  are  to  be  executed.  But  it  is  no  where  said, 
that  there  shall  be  no  arrest  without  warrant.  To  have  said 
so  would  have  endangered  the  safety  of  society.  The  felon 
who  is  seen  to  commit  murder  or  robbery,  must  be  arrested 
on  the  spot  or  suffered  to  escape.  So  although  not  seen,  yet 
if  known  to  have  committed  a  felony,  and  pursued  with  or 


OF  PENNSYLVANIA. 


319 


without  warrant,  he  may  be  arrested  by  any  person.  And 
even  when  there  is  only  probable  cause  of  suspicion,  a  pri- 
\>ate  person  may  without  warrant  at  his  peril  make  an  arrest. 
I  say  at  his  peril,  for  nothing  short  of  proving  the  felony 
will  justify  the  arrest.  These  are  principles  of  the  common 
law,  essential  to  the  welfare  of  society,  and  not  intended  to 
be  altered  or  impaired  by  the  constitution.  The  whole  sec- 
tion indeed  was  nothing  more  than  an  affirmance  of  the 
common  law,  for  general  warrants  have  been  decided  to  be 
illegal  j  but  as  the  practice  of  issuing  them  had  been  ancient, 
the  abuses  great,  and  the  decisions  against  them  only  of 
modern  date,  the  agitation  occasioned  by  the  discussion  of 
this  important  question  had  scarcely  subsided,  and  it  was 
thought  prudent  to  enter  a  solemn  veto  against  this  powerful 
engine  of  despotism.  I  am  therefore  of  opinion,  that  the  de- 
fendants were  justified  in  making  the  arrest,  if  they  could 
prove  the  plaintiff  guilty  of  larceny ;  consequently  the  record 
tending  to  prove  the  larceny  was  legal  evidence. 

The  next  question  is  on  the  admission  of  Fries  and  Wenn 
as  witnesses,  which  was  objected  to  by  the  plaintiff,  on  the 
ground  of  their  being  defendants  in  the  action.  There  is  no 
technical  rule  in  the  way  of  their  admission.  If  a  plaintiff 
includes  persoos  in  the  suit  against  whom  no  evidence  is 
offered,  they  may  be  witnesses.  The  bare  circumstance  of 
being  a  defendant  therefore  is  not  an  exclusion.  These  de- 
fendants however  are  implicated  in  the  trespass,  and  as  the 
law  was  held  in  the  case  of  Lloyd  v.  Williams,  Cases  Temp. 
Hardw.  123,  they  are  incompetent.  But  I  agree  with  the 
principle  laid  down  by  the  Supreme  Court  of  New  Tork  in 
Stockholm  v.  Jones,  1O  Johns.  21,  (a  principle  long  adopted 
by  this  Court}  that  the  interest  which  the  witness  has  in  the 
verdict,  is  the  criterion  by  which  his  competency  is  to  be 
ttsted.  If  he  be  interested  in  the  question  but  not  in  the 
verdict,  it  goes  to  his  credit  but  not  to  his  competency.  It 
was  in  the  power  of  the  plaintiff  to  have  conducted  his  cause 
so  as  to  exclude  the  testimony  of  Fries  and  Wenn;  he  might 
have  laid  them  under  a  rule  to  plead,  and  taken  judgment 
by  default,  and  then  they  would  have  been  interested  in  the 
verdict,  because  the  same  jury  who  tried  the  issue  against 
the  other  defendants,  would  have  assessed  joint  damages 
against  all.  But  as  ttye  record  stands,  Fries  and  Wenn  had 


1814. 


W A KELT 

V. 

HART 


320 


GASES  IN  THE  SUPREME  COURT 


1814. 


WAKELY 

v. 

HART 
etal. 


not  the  least  interest  in  the  verdict  against  Hart  and  Peters 
'and  were  just  as  indifferent  as  if  they  had  been  sued  in 
several  actions.  They  were  therefore  competent  witnesses. 
The  last  reason  urged  for  a  new  trial,  is  that  the  judge 
charged  the  jury  to  find  for  the  defendants,  if  they  should 
be  of  opinion  that  he  stole  a  watch,  or  received  it  knowing 
it  to  be  stolen.  A  motion  for  a  new  trial  is  an  appeal  to  the 
discretion  of  the  Court.  We  are  to  look  at  the  substance  of 
the  case,  and  consider  whether  injustice  has  been  done.  It 
may  be  that  an  inadvertent  expression  may  fall  from  a  judge, 
and  yet  the  verdict  be  perfectly  right.  There  is  no  need  to 
decide  whether  an  arrest  may  be  made  without  warrant, 
for  such  a  misdemeanor  as  receiving  stolen  goods  knowing 
them  to  be  stolen.  It  is  an  offence  which  approaches  very 
near  to  a  felony,  and  its  effects  are  more  pernicious  than 
the  felony  itself,  for  if  there  were  no  receivers  there  would 
be  but  few  felonies,  and  one  receiver  may  support  twenty 
felons.  But  supposing  that  the  judge's  charge  was  inaccu- 
rate with  respect  to  the  receipt  of  stolen  goods,  still  the  ver- 
dict ought  to  have  been  for  the  defendants.  They  rested 
their  justification  on  a  larceny  committed  by  the  plaintiff,  and 
in  my  opinion  there  was  abundant  evidence  of  the  plaintiff's 
guilt.  He  was  proved  to  be  a  man  of  bad  character,  and  was 
found  in  possession  of  a  stolen  watch,  of  which  he  could 
give  no  account.  He  was  indicted  for  stealing  this  watch, 
and  being  admitted  to  bail  before  the  bill  was  found,  he 
made  default  in  his  appearance,  and  forfeited  his  own  recog- 
nizance and  that  of  his  surety.  How  could  the  jury  enter- 
tain any  doubt  of  his  guilt,  and  what  would  be  the  use  of 
sending  such  a  cause  to  a  second  trial  ?  It  appears  to  me  that 
justice  has  been  done,  and  I  am  therefore  of  opinion  that 
judgment  should  be  entered  on  the  verdict. 

YEATES  J.  and  BRACKENRIDGE  J.  concurred. 

Judgment  for  defendants. 


OF  PENNSYLVANIA.  321 


}b  321 
IsrSOS 


1814. 
2sr2o?    BIDDIS  administrator  of  BIDDIS  against  JAMES.    fhiladeipAia 

Monday, 
Sg   37  IN  ERROR.  ^uly  25- 


2      87i._  An  edition  of 

407  • 


3K?li^  P  trr  *^C  'aws>  i--' 

467LJL-J  RROR  to  the  Common  Pleas  of  Wayne  county.  ed  under  the 


The  action  in  the  Court  below,  was  brought  by 
James  against  George  Biddis  administrator  of  John  Biddis,  dun^LweU  °L. 
to  recover  1O,OOO  dollars,  the  amount  of  a  prize  drawn  by  the  public  laws  it 
the  plaintiff  in  a  lottery  made  by  the  intestate  in  his  lite  ^i^a'si'iit  to  re- 
time, but  not  drawn  till  after  his  death.  °over  :t  Pri,ze 

drawn  in  a  lottery, 

The  act  under  which  the  lottery  was  formed,  was  passed  the  scheme  of 
on  the  20th  January  1806,  entitled  "  An  act   author  izing^'^'f 


"  John  Biddis  to  vend  his  patent  rights,  for  manufacturing  for  com  ply  ing 

•*  •  r  •  with  the  lnw,  filed 

"  potatoe  starch,  sago  and  hair  powder,  and  for  opening  oriu  the  secretary's 
u  reducing  offcast  woolen  clothing  to  wool  ;"  and  contained  °ntothe  ba»kPof 
but  one  section,  in  the  following  words  :    "  That  it  shall  be  ext'cutive  mi: 

.  nutes,  are  evi- 

u  lawful  for  John  Biddis  to  vend  his  aforesaid  patent  rights  deuce  against  the 
"for  eighteen  months  from  the  date  hereof,  according  to  BJJJSEJ^jJ^" 
41  plan  to  be  by  him  lodged  with,  and  to  be  approved  of  byi>roof  that  he  had 

.  .  executed  the 

**  the  Governor  of  this  Commonwealth  ;  he  the  said  John  bond  <«•  deposited 
"Biddis  giving  the  necessary  sureties  for  the  faithful  per-j^c^e™*:s*me 
*'  formance  in  the  premises,  and  for  a  full  and  complete  dis-  tiine  shewn  tllstt 

,._        .  -  ,  .  .    ,  ,  there  was  no 

w  closure  and  exemplification  ot  his  patent  rights,  at  the  end  other  bond  or 
44  of  the  said  term  of  eighteen  months,  any  lavr  to  the  con-  ^™e  m  lhe 
41  trary  of  this  act  notwithstanding."  The  oath  of  a 

—        ,  .    i       r     i  •  11          esc    i         r».  i  »•    person  who  at- 

On  the  trial  or  the  cause,  it  appeared  that  john  Biddis  tended  the  draw- 
submitted  the  plan  of  a  lottery  to  the  governor,  and  that  itjj£  besVe^iJnce 
was  approved  by  him  within  eighteen  months  of  the  date  of  tliat  M  particular 

i  cw    F          r>-  t  t-     •        i  •      IT  •  11  numlier  drew  a 

the  law.  John  Biddts  in  his  lite  time  signed  about  loOO  certain  prize. 
tickets,  and  authorized  his  son  John  to  sign  tickets  in  his  lot^r^^souTalter 

name,  which  he   did  in    the  life   time  of  his  father  to  the  tlie  time  limited 

P    ,  rr,.      .  ,  .     ,  .    bv  law  for  com* 

amount  ot  about  35  or  37,000  more.      Ihe  intestate  died  in  pietmg  the  sales, 

March  180r,   and  after  his    death  the  defendant  and  the  ^nr^°r  [g* 
familv  concluded  to  proceed  and  complete  the  business.  On  i>rize  tl|at  ma>'  be 

•  i     j-i  j  i  t  drawn  against  it. 

the  8th  February  1808,  the  governor  commissioned  persons 

to  superintend  the  drawing  of  the  lottery  ;  and  in  that  xvinter 

John  Biddis  the  son,  with  the  concurrence  of  the  defendant, 

•signed  tickets  in  the  name  of  his  father  to  the  amount,  in- 

cluding those  previously  signed,  of  about  124,OOO,  of  which 

between  8O  and  100,000  were  put  into  the  wheel.    The  tic- 

VOL.  VI.  3  S 


322 


CASES  IN  THE  SUPREME  COURT 


1814. 


BlDDIS 
V. 

JAMES. 


ket  of  the  plaintiff,  as  was  the  case  with  all  those  produced, 
bore  date  the  1st  April  1806.  The  drawing  commenced  on 
the  23d  February  18O8,  and  ended  on  the  1st  August  1809, 
on  which  day  the  plaintiff's  ticket  drew  a  prize  of  10,OOO 
dollars.  Many  witnesses  were  examined  to  shew  that  the 
plaintiff's  ticket  was  issued  after  the  expiration  of  the  eigh- 
teen months,  and  to  prove  that  the  signature  was  not  that  of 
John  Biddis  the  intestate  j  other  witnesses  were  produced  to 
repel  this  testimony,  and  to  shew  that  James  had  purchased 
this  and  seventy-nine  other  tickets,  without  any  knowledge 
of  the  defendant's  proceedings. 

The  plaintiff  in  the  course  of  the  trial  offered,  1.  a  printed 
copy  of  the  act  of  20th  January  1806,  contained  in  a  pamph- 
let of  the  laws,  purporting  to  have  been  printed  by  Francis 
Bailey  in  the  year  1806,  under  the  direction  of  T.  M. 
Thompson,  secretary  of  the  Commonwealth,  in  pursuance 
of  a  resolution  of  the  legislature.  2.  A  paper  writing 
purporting  to  be  a  scheme  of  a  lottery  signed  John  Biddis^ 
and  proved  by  a  clerk  in  the  office  of  the  secretary  of  the 
Commonwealth,  to  have  been  found  on  the  files  of  that  office, 
and  by  him  copied  into  the  book  of  executive  minutes ;  and 
that  it  was  the  only  scheme  of  a  lottery  found  in  that  office 
purporting  to  have  been  signed  by  John  Biddis.  3.  Two 
bonds  purporting  to  be  signed  and  sealed  by  John  Biddis 
and  others,  in  the  presence  of  two  witnesses,  and  proved  by 
the  same  clerk  to  have  been  found  on  the  files  of  the  secre- 
tary's office,  with  the  said  scheme  of  a  lottery,  and  copied 
into  the  book  of  executive  minutes.  4.  A  journal  of  the 
drawing  of  the  lottery,  proved  by  the  deposition  of  Michael 
Fortune  to  have  been  truly  kept  by  him  from  the  commence- 
ment to  the  termination  of  the  lottery,  and  by  which  it  ap- 
peared that  the  plaintiffs  ticket  drew  the  prize  in  question. 

To  all  these  the  defendant's  counsel  objected,  but  the 
Court  overruled  the  objections,  and  finally  charged  the  jury, 
that  according  to  the  act,  John  Biddis  had  only  the  power  of 
vending  his  patent  rights  during  the  eighteen  months,  that 
it  was  exceedingly  improper  for  the  administrator  to  sell 
after  that  time,  and  that  the  District  Court  for  the  city  and 
county  of  Philadelphia  had  decided  correctly  in  refusing  to 
compel  a  payment  for  tickets  purchasedsafter  that  time  from 
the  agent  of  the  lottery.  But  that  the  plaintiff  came  honestly 


OF  PENNSYLVANIA. 

by  the  ticket,  without  any  knowledge  of  the  circumstances, 
that  the  misconduct  was  entirely  on  the  part  of  the  defend-" 
ant,  and  therefore  if  the  jury  were  of  opinion  that  the  plain- 
tiff acquired  the  ticket  innocently,  he  was  entitled  to  recover 
the  prize  with  interest,  although  the  ticket  should  have 
issued  after  the  eighteen  months,  in  consequence  of  the  fraud 
and  artifice  practised  by  the  defendant. 

Bills  of  exceptions  were  tendered  to  the  opinions  of  the 
Court  upon  the  evidence,  and  to  the  charge. 

Sergeant  and  Ingersoll  for  the  plaintiff  in  error. 

1.  The  pamphlet  of  the  laws  was  not  evidence,  because 
the  act  in  question  being  a  private  act,»of  which  the  Courts 
do  not  take  notice,  the  only  mode  of  proof  is  by  an  exem- 
plification from  the  Roll's  office,  or  by  a  sworn  copy.  Gilb. 
£v.  10.  12.,  Peaks  26.    The  pamphlet  was  evidence  of  the 
public  laws  merely.     In  the  Commonwealth  v.  Frazer  and 
Porterfield,  tried  before  the  Chief  Justice  and  Teates  J.,  at 
an  Oyer  and  Terminer  in  January  1813,  it  was  decided 
that  the  printed  copy  of  a  law  of  Delaware  published  by 
authority  of  the  state,  was  not  evidence  of  a  private  act. 
The  opinion  of  C.  J.  Marshall  in  4  Crunch  384,  was  obiter. 

2.  3.  The  scheme  should  have  been  proved.     There  was 
no  evidence  that  it  had  been  placed  in  the  office  by  Biddls 
or  by  any  one  for  him,  nor  was  his  handwriting  to  it  prov- 
ed.   This  was  the  very  foundation  of  the  plaintiff's  suit,  and 
better  evidence  was  in  the  power  of  the  party  than  he  fur- 
nished.   The  same  objection  applies  in  a  great  degree  to  the 
bonds*     There  was  no  evidence  of  the  handwriting  of  wit- 
nesses or  parties. 

4.  The  journal  was  inadmissible,  because  the  drawing  was 
illegal ;  most  of  the  sales,  and  the  whole  of  the  drawing, 
having  taken  place  after  the  death  of  Biddis^  whereas  the 
lottery  was  a  personal  trust  in  him. 

5.  The  charge  of  the  Court  was  clearly  wrong.     In  the 
first  place  because  the  fraud  of  the  defendant,  if  he  was 
guilty  of  any,  could  not  make  the  estate  of  the  intestate 
liable;  and  the  judgment  here  is  against  the  estate  of  the  in- 
testate, the  defendant  being  sued  in  his  representative  cha- 
racter.    In  the  next  place,  because  there  was  no  cause  of 
action  upon  a  ticket  issued  after  the  eighteen  months.     By 
the  act  of  17th  February  1762,  lotteries  are  declared  to  be 


323 


1814. 


13 1  mm 

v. 
JAMES. 


324 


CASES  IN  THE  SUPREME  COURT 


1814. 


BlDUIS 
V. 

JAMES. 


common  nuisances.  A  penalty  of  500/.  is  inflicted  upon  the 
*  maker,  and  20/.  on  the  purchaser,  of  a  ticket.  The  act  of 
20th  January  1806  gave  to  Biddis  the  right  to  sell  his 
patent  rights,  by  lottery,  only  for  eighteen  months  after 
the  date.  After  that  the  sale  of  tickets  was  illegal,  and 
passed  no  right.  A  bond  for  the  price  of  them  was  held  in 
the  District  Court  to  be  void.  Barton  v.  Hughes  (a). 
Whatever  might  have  been  the  conduct  of  the  respective 
parties,  no  court  of  this  Commonwealth  can  do  less  than  re- 
fuse their  aid  to  the  plaintiff,  because  the  contract  was  in 
violation  of  a  public  law.  May  bin  v.  Coition  (£),  Mitchell  v* 
Smith  (c),  Huntv.  Knickerbocker  (d}.  In  addition  to  this  limi- 
tation of  time  in  the  law,  there  is  a  personal  limitation  to 
Biddis.  Neither  the  act  nor  the  nature  of  the  trust  extends  to 
administrators.  Biddis  could  not  have  assigned  the  privilege ; 
it  could  not  have  been  taken  in  execution ;  it  was  not  as- 
sets in  the  hands  of  executors.  Where  the  law  intends  to 
embrace  representatives,  as  in  the  case  of  copyrights  and 
patents,  it  names  them.  1  U.  S.  Laws,  118.,  2  U.  S.  Laws 
20O.  It  follows  from  this  that  a  sale  within  the  eighteen 
months,  but  after  Biddis's  death,  passed  no  right.  The  act 
of  21st  March  1806  has  nothing  to  do  with  the  case.  It  only 
prevents  the  application  of  the  common  law  to  cases  provid- 
ed for  by  the  act  of  assembly,  further  than  may  be  neces- 
sary to  carry  the  act  into  effect.  Here  the  act  of  1762  can 
not  be  carried  into  effect  without  defeating  the  contract. 

jf.  Eiv'mg  and  Tilghman  for  the  defendant  in  error. 

1.  There  is  no  difference  between  public  and  private  laws, 
when  both  are  printed  by  public  authority.  The  printed, 
book  is  as  high  evidence,  as  an  exemplification  under  seal. 
The  reason  why  in  England  a  distinction  has  been  taken, 
is  because  private  statutes  are  not  printed  by  the  king's 
printer,  and  the  judges  it  is  said  take  notice  of  public  sta- 
tutes, and  only  refresh  their  memories  by  the  book.  Where 
howeyer  a  private  statute  is  so  printed,  in  consequence  of 
its  relating  to  many  persons,  as  to  a  whole  county,  it  may 
be  read  from  the  statute  book  even  in  that  country ;  2  Bac. 
Abr.  609 ;  and  in  our  own  state,  this  distinction  between 
public  and  private  statutes  was  done  away  in  the  case  ol; 


(«)  2  Browne  48. 
(i)  4JDatf.  2G«J. 


(c)  1  Binn.  ItO. 
(rf)  5  Johns.  3"27. 


OF  PENNSYLVANIA. 


325 


Thompson  v.  Musser  (a),  where  the  court  received  after  full 
argument  the  printed  laws  of  Virginia  as  evidence  of  a  pub- 
lic statute,  of  which  at  the  same  time,  being  the  law  of  ano* 
ther  state,  the  judges  certainly  could  not  take  notice,  more 
than  of  a  private  law.  In  Young  v.  The  Bank  of  Alexandria 
(£),  C.  J.  Marshall  considers  a  private  law  to  be  well  prov- 
ed by  a  copy  of  the  laws  printed  by  public  authority. 

2.  3.  The  scheme  was  the  only  one  in  the  office,  and  there- 
fore as  Biddis  had  made  a  lotterv,  which  was  drawn,  and 
the  plan  of  which  he  was  bound  to  lodge  with  the  governor, 
this  circumstance  was  at  least  presumptive  evidence  that  the 
scheme  was  placed  there  by  him.  His  signature  to  it  was 
•unnecessary.  So  as  to  the  bonds*  In  an  action  upon  them, 
it  would  have  been  necessary  to  prove  them  ;  but  when  the 
only  question  was  whether  they  had  been  deposited  in  con- 
formity with  law,  their  being  genuine  or  not  was  of  no  im- 
portance between  these  parties. 

4.  Whether  the  drawing  was  lawful  or  otherwise,  the 
journal  supported  by  oath  was  the  best  evidence  of  the  fact, 
that  the  plaintiff's  ticket  drew  the  prize. 

5.  The  charge  of  the  court  is  not  liable  to  the  objections 
which  have  been  raised.  The  act  extended  to  the  administra- 
tors of  Biddis,  because  it  was  a  trust  coupled  with  an  inte- 
rest. If  he  had  sold  many  tickets  in  his  life  time,  and  then 
died,  the  purchaser  might  have  insisted  upon  a  drawing, 
and  what  injury  could  arise,  or  what  difference  did  it  make, 
to  the  public?  The  charge  of  the  judge  must  be  taken  alto- 
gether. There  was  enough  before  the  jury  to  shew  that  the 
ticket  was  sold  within  the  eighteen  months.     But  if  not, 
still  it  does  not  follow  that  the  sale  was  void.  It  was  not  the 
intent  of  the  law  that  Biddis  should  be  absolutely  restricted 
to  that  time.  The  lottery  was  concluded  within  a  reasonable 
time.    In  the  Earl  of  Salisbury  v.  Bennet  (c),  a  legacy  of 
20,OOO/.   was  to  be  reduced  to  10,OOO/.  unless  the  legatee 
married  after  sixteen,  and  with  the  consent  of  three  persons ; 
she  married  with  their  consent,  but  before  sixteen,  and  the 
full  legacy  was  decreed,  the  time  being  only  a  circumstance. 
Lapse  of  time  in  tendering  a  conveyance  or  the  like,  is  con- 
stantly relieved  against.  Gibson  v.  Patterson  (</).     If  how- 
ever the  time  is  essential,  and  the  contract  would  have  been 
void  by  the  operation  of  the  common  law  upon  the  act  of 

(a)  1  Dall.  403.      (6)  4  Crane//  384.      (c)  Skim.  285.      (</)  1  Jtk.  12. 


1814. 


BIDDIS 

v. 
JAMES. 


326  CASES  IN  THE  SUPREME  COURT 

1814,        1 762,  yet  since  the  act  of  21st  March^  1 806,  4  Smith  332,  the 
BIDDIS      Court  cannot  declare  it  void,  because  the  act  first  mentioned 
v.  provides  another  remedy,  namely  a  penalty  of20l.t  and  by 

JAMES.       jj^  ac^  jast  mentioned  the  penalty  of  the  common  law  can- 
not be  applied,  where  the  statute  has  created  one. 

TILGHMAN  C.  J.  The  record  contains  two  bills  of  excep- 
tions, the  first  relating  to  four  several  papers  offered  in  evi- 
dence by  the  plaintiff  and  admitted  by  the  Court,  the  second 
to  the  charge  of  the  Court.  These  shall  be  considered  in 
their  order. 

1.  The  first  paper  objected  to  was  a  copy  of  the  act  of 
assembly,  printed  by  the  public  printer  under  the  direction 
of  the  secretary  of  the  Commonwealth,  who  was  authorized 
by  the  legislature  to  compare  the  copy  with  the  original 
roll.  By  the  law  of  England^  the  copies  of  the  public  laws 
printed  by  the  king's  printer,  are  read  in  court,  not  as  evi- 
dence, but  as  bringing  to  the  mind  of  the  Court,  a  matter 
which  every  man  is  supposed  to  know,  because  every  man 
is  a  party  to  the  public  laws,  having  consented  to  them  by 
his  representative.  But  a  private  law  is  to  be  proved  as  any 
other  matter  of  fact.  This  distinction  between  public  and 
private  laws,  is  by  no  means  satisfactory,  when  applied  to 
the  actual  state  of  the  world.  Whatever  reason  there  might 
be  for  supposing  that  every  man  knew  the  law  in  ancient 
times,  when  laws  were  few  and  short,  and  at  the  end  of  each 
session  a  copy  of  the  laws  was  sent  to  the  sheriff  of  every 
county,  who  made  public  proclamation  of  them  at  the  county 
court,  and  suffered  the  people  to  read  them  and  take  copies 
at  their  pleasure,  1  BL  Comm.  185,  yet  there  is  no  ground 
for  this  supposition  at  present,  when  laws  are  numerous, 
long  and  intricate,  when  they  are  not  published  by  procla- 
mation, and  when  in  fact,  neither  the  people,  nor  even  the 
judges,  have  any  opportunity  of  knowing  them  but  from 
printed  copies.  It  is  for  this  reason  that  it  has  been  usual 
for  the  legislatures  of  the  several  states  to  have  the  laws 
printed  by  authority.  Confidential  persons  have  been  select- 
ed to  compare  the  copies  with  the  original  rolls,  and  super- 
intend the  printing.  The  object  of  this  provision  was  to  fur- 
nish the  people  with  authentic  copies ;  and  from  their  nature, 
printed  copies  of  this  kind,  either  of  public  or  private  laws, 
are  as  much  to  be  depended  on  as  the  exemplification,  veri- 


OF  PENNSYLVANIA. 


327 


fied  by  an  officer  who  is  the  keeper  of  the  record.  In  Eng- 
land there  is  no  provision  by  parliament  for  the  publication  "" 
of  their  laws.  They  are  printed  by  the  king's  printer.  There 
ought  therefore  to  be  a  difference  in  the  law  of  evidence 
respecting  printed  copies  in  the  two  countries.  And  we  find 
that  when  the  subject  has  been  presented  to  the  minds  of 
the  American  judges,  they  have  not  failed  to  be  struck  with 
the  difference.  In  the  case  of  Thomson  v.  Musser,  1  DalU 
463,  this  Court  admitted  the  printed  copy  of  a  Virginia 
act  of  assembly.  This  decision  abolished  the  distinction  be- 
tween public  and  private  acts,  because  it  could  not  be  sup- 
posed that  the  people  of  Pennsylvania  were  acquainted  with 
the  public  laws  of  Virginia,  having  never  made  or  consented 
to  them  either  in  person  or  by  representative.  In  Toung  v. 
The  Bank  of  Alexandria,  4  Cranch  388,  the  subject  was 
brought  before  the  Supreme  Court  of  the  United  States, 
when  Chief  Justice  Marshall  expressed  his  opinion,  that 
whether  the  law  were  public  or  private,  yet  being  printed 
by  the  public  printer,  by  order  of  the  legislature,  agreeably 
to  a  general  act  of  assembly  for  that  purpose,  it  must  be 
considered  as  sufficiently  authenticated.  He  declared  indeed 
at  the  same  time,  that  the  Court  would  not  prevent  counsel 
from  arguing  the  point,  if  they  thought  they  could  support 
the  contrary  opinion,  but  the  counsel  declined  the  attempt, 
This  opinion  of  Chief  Justice  Marshall  appears  to  me  to  be 
perfectly  correct.  I  am  for  admitting  the  printed  copies, 
authorized  by  the  legislature  cither  of  this  or  any  other  state, 
whether  the  laws  be  public  or  private. 

The  two  next  papers  received  in  evidence,  I  shall  consi- 
der together,  as  they  fall  within  the  same  principle.  One 
was  the  scheme  of  a  lottery  signed  by  John  Biddis,  the 
other  a  bond  of  "John  Biddis  with  securities.  Neither  the 
execution  of  the  bond,  nor  the  signature  of  John  Biddis  to 
the  scheme,  was  proved;  but  it  was  proved  that  these  papers 
were  found  on  the  file  of  the  secretary's  office,  and  copied 
by  the  clerk  into  the  book  of  executive  minutes,  and  that 
there  was  no  other  scheme  of  Biddis^s  lottery  to  be  found 
in  the  office.  In  an  action  on  the  bond,  it  would  have  been 
necessary  to  prove  its  execution.  As  to  the  scheme,  it  was 
not  essential  that  the  name  of  Biddis  should  be  signed  at 
all,  and  therefore  this  paper  being  found  in  the  office,  and  no 
other  paper  of  the  kind  being  there,  the  presumption  was 


1814. 


BIDDIS 

v. 
JAMES. 


528 


CASES  IN  THE  SUPREME  COURf 


1814. 


BlDDIS 
17. 

JAMES. 


very  strong  that  it  was  the  scheme  submitted  to  the  governor 
in  compliance  with  the  act  of  assembly.  With  respect  to  the 
bond,  the  presumption  was  equally  strong  of  its  having  been 
deposited  by  Biddis,  and  if  deposited  by  him,  I  take  it  to 
be  immaterial  in  the  present  action  whether  he  executed  it 
or  not.  For  if  he  had  deposited  a  forged  bond,  and  thus  im- 
posed on  the  governor,  he  would  not  be  permitted  to  avail 
himself  of  this  plea,  in  bar  of  actions  for  the  recovery  of 
prizes  in  the  lottery  which  he  had  proceeded  to  draw. 

The  fourth  paper  was  clearly  evidence.  It  was  a  journal 
of  the  drawing  of  the  lottery  verified  by  the  oath  of  the  per- 
son who  kept  it.  Whether  the  lottery  was  legally  drawn, 
was  another  question.  But  it  was  incumbent  on  the  plainuff 
to  prove,  that  his  ticket  drew  the  prize  of  10,OOO  dollars ; 
and  there  could  be  no  better  way  of  proving  it  than  by  the 
oath  of  a  person  who  attended  the  whole  drawing,  and  kept 
a  written  account  of  the  proceeding?* 

The  exception  to  the  charge  of  the  Court  remains  to  be 
considered.  The  judge  was  of  opinion,  that  the  act  of  as- 
sembly having  confined  the  license  to  vend  the  patent  rights 
to  the  term  of  eighteen  months,  no  ticket  could  legally  be 
sold  after  eighteen  months,  because  the  sale  of  tickets  was 
the  mode  adopted  for  the  sale  of  patent  rights  :  yet  he  charg- 
ed, that  it  was  immaterial  in  the  present  action,  whether 
the  sale  of  the  ticket  was  within  the  eighteen  months  or  not, 
because  the  plaintiff  having  come  fairly  to  the  ticket,  the  de- 
fendant should  not  avail  himself  of  his  own  fraud  in  selling 
tickets  contrary  to  law.  In  the  first  place,  as  the  legality  of 
selling  or  of  purchasing  these  tickets  depended  on  an  act 
of  assembly,  it  was  the  fault  of  the  plaintiff  to  purchase  j 
nor  could  any  fraud  which  the  defendant  could  practice,  pre- 
vent the  plaintiff,  if  he  had  used  due  caution,  from  knowing 
that  the  eighteen  months  limited  by  law  had  expired.  But 
were  it  otherwise,  the  fraud  of  the  defendant  is  not  sufficient 
to  support  this  action,  which  is  founded  on  the  assumption 
of  the  intestate.  This  issue  is  joined  on  his  assumption,  and 
the  judgment  is  against  his  estate.  So  that  to  support  the 
action  on  the  ground  of  fraud  in  the  defendant,  would  be  to 
punish  one  man  for  the  offence  of  another.  It  was  urged 
also  in  support  of  the  action,  that  the  limitation  of  eighteen 
months  was  but  a  circumstance,  against  which  the  Court  may 
relieve  by  extending  the  time.  1  cannot  think  so.  It  is  a  cir- 


OF  PENNSYLVANIA. 


329 


cumstance  to  be  sure,  but  a  very  matt  rial  one,  a  substantial 
part  of  tne  terms  imposed  by  the  legislature,  which  it  is  not"" 
in  the  power  of  any  court  to  alter.  But  it  has  bet n  contend- 
ed, that  granting  the  drawing  of  this  lottery  to  have  been 
contrary  to  law,  yet  the  action  is  maintainable ;  because  by 
the  act  of  17th  February  1762,  a  penalty  is  imposed  on  both 
buyers  and  sellers  of  lottery  tickets,  and  by  the  act  of  21st 
March  1806  it  is  enacted,  that  "in  all  cases  where  a  reme- 
"  dy  is  provided,  or  any  thing  directed  to  be  done  by  any 
*'  act  of  assembly,  the  directions  of  the  said  act  shall  be  strictly 
"  pursued,  and  no  penalty  shall  be  inflicted,  or  any  thing 
"  done,  agreeably  to  the  provisions  of  the  common  law  in 
"  such  cases,  farther  than  shall  be  necessary  to  carry  such 
"  act  into  effect."  The  construction  contended  for  by  the 
plaintiff,  gives  this  provision  a  very  unnecessary  and  incon- 
venient extent,  and  one  which  is  greater  than  the  words  re- 
quire. The  act  of  February  1762,  not  only  inflicts  penal- 
ties on  the  buying  and  selling  of  tickets,  but  expressly 
enacts,  "that  all  lotteries  whether  public  or  private  are 
**  common  and  public  nuisances,  and  against  the  common 
"  good  and  welfare  of  this  province."  So  that  to  give  effi- 
cacy to  this  provision,  it  is  at  least  useful  to  call  in  that  prin- 
ciple of  the  common  law,  which  forbids  the  courts  to  take 
cognizance  of  an  action  founded  on  a  flagrant  breach  of  law. 
This  is  not  the  inflicting  of  a  penalty,  or  doing  any  thing 
different  from  or  more  than  is  enacted.  It  is  but  a  negative 
interference,  to  prevent  a  public  injury,  and  to  carry  the  law 
more  effectually  into  operation.  The  construction  has  been 
settled  already  in  this  court,  in  the  case  of  Primer  v.  M'-Con- 
nell,  and  in  the  District  Court  in  the  case  of  Barton  v. 
Hughes.  In  both  these  cases,  it  was  decided  that  an  action 
could  not  be  supported  for  the  price  of  a  ticket  in  a  lottery, 
which  was  not  authorized  by  law.  I  am  of  opinion  upon  the 
whole,  that  there  is  no  error  in  the  points  mentioned  in  the 
first  bill  of  exceptions,  but  that  there  is  error  in  the  charge  of 
the  Court,  for  which  the  judgment  should  be  reversed,  and  a 
venire  facias  de  novo  awarded. 

YEATES  J.  and  BRACKENRIDOK  J.  delivered  their  opi- 
nions, in  all  points  concurring  with  the  Chief  Justice. 


1814. 


BlDDIS 
V. 

JAMES, 


VOL.  VI, 


330  CASES  IN  THE  SUPREME  COURT 


1814. 

Philadelphia,  GARRIGUES  against  REYNOLDS  qm  (dm. 

Monday,  JN  ERROR. 

July  25. 

Salted  beef  or  '  •  ''HIS  was  a  GUI  tarn  action  to  recover  from  Benjamin 

pork.in  ban-els,  ,-,     _  .  ...  •,,,.,  • 

exposed  to  sale,      •*•  *•  v8rngwe»  the  penalties  imposed  by  the  sixth  section 

foU,^7pJrtaetionorof  the  act  of  12th  March  ir89»  for  sellinS  twelve  barrels 
for  ship  stores,  is  and  eight  half  barrels  of  salted  pork,  which  were  not  brand- 
not  subject  to  iu-       .         .  . 
speetion.             £d  or  inspected. 

Upon  the  trial  in  the  Common  Pleas  of  Philadelphia 
county,  the  plaintiff  gave  in  evidence,  that  the  defendant  in 
the  year  1809  sold  the  pork  in  question,  and  that  it  was  not 
branded  or  inspected  by  the  inspector  of  beef  and  pork  for 
the  time  being.  It  also  was  given  in  evidence,  that  the  pork 
was.  not  sold  either  "for  ships  stores,  or  for  exportation  .•" 
and  the  president  upon  the  whole  matter,  charged  the  jury, 
that  the  pi  ;;ntiff  was  entitled  to  recover,  and  sealed  a  bill  of 
exceptions  tendered  by  the  defendant. 

The  question  was  argued  in  this  Court  by  Lowber  and 
N,  Chauncey  for  the  plaintiff  in  error,  and  by  Sergeant 
contra. 

TILGHMAK  C.  J.  The  single  question  in  this  case  is,  whe- 
ther the  seller  of  salted  beef  or  pork  in  barrels  in  this  state, 
not  intended  for  exportation,  or  for  ship  stores,  is  subject 
to  the  penalties  of  the  act,  entitled  u  a  supplement  to  an  act, 
u  entitled  an  act  more  effectually  to  prevent  unfair  practices 
"  in  the  package  of  beef  and  pork  for  exportation,  and  to 
"  regulate  the  exportation  of  flaxseed,  butter,  and  biscuit  in 
"  kegs,"  passed  12th  March  1789.  2  Smith's  Laws  475. 

So  long  ago -as  the  year  1700,  1  St.  Laws  27,  an  act  was 
passed  to  prevent  abuses  in  the  exportation  of  unsound 
meat;  but  neither  in  that,  nor  in  the  original  act  passed  llth 
August  1727,  to  which  the  present  is  a  supplement,  was 
there  any  provision  for  meat  not  intended  to  be  exported. 
The  present  act  in  the  preamble  speaks  only  of  the  exports 
from  this  state;  but  the  first  six  sections  which  relate  to  the 
materials,  make  and  guage  of  the  casks,  the  quantity  of  meat 
to  be  contained  therein,  and  the  manner  of  package  and  in- 
spection, use  a  different  language ;  they  all  speak  of  "  casks 


OF  PENNSYLVANIA.  331 

tt  in  which  salted  beef  or  pork  shall  be  exposed  to   sale       1814. 
"  within  this  Commonwealth,  or  exported  therefrom."  If  the   GARRIGUES 
whole  law  were  expressed  in  this  manner,  we  should  be  con-  -o. 

strained  to  say,  that  this  act  had  a  different  intention  from  REYNOLD*. 
the  former  acts,  however  unable  we  might  be  to  account  for 
it.  But  the  seventh  section,  which  fixes  the  inspector's  fees, 
seems  to  recur  to  the  old  idea  of  exportation,  for  it  provides 
that  "  the  inspector  may  lawfully  demand  and  receive  the 
"  sum  of  sixpence  and  no  more  for  inspecting,  examining, 
"  and  branding  each  and  every  tierce,  barrel  or  half  barrel 
V  of  salted  beef  or  pork,  which  shall  be  sold  at  the  port  of 
"  Philadelphia,  or  exported  therefrom,  whether  the  same  be 
"  sold  for  ships  stores  or  exportation  ;  and  also  the  further 
"  sum  of  one  shilling  and  sixpence  for  each  tierce,  and  of 
"  one  shilling  for  each  barrel  or  half  barrel  of  salted  beef 
"  or  pork,  which  he  the  said  inspector  shall  repack  &c." 
Now  it  could  not  be  intended  that  the  inspector  should 
act  without  a  fee,  and  the  only  fees  given  by  this  act  are  in 
cases  of  exportation,  or  selling  for  ships  stores  or  exporta- 
tion. So  that  considering  the  whole  of  this  act,  connected 
with  the  preceding  acts,  it  seems  proper  to  restrain  the 
generality  of  the  expressions  in  the  first  six  sections  to  the 
cases  mentioned  in  the  seventh  section.  But  it  is  contended, 
that  the  fees  given  by  the  act  of  18th  August  1727,  remain 
in  force  in  all  places  except  the  city  of  Philadelphia.  By 
that  act,  the  inspector  is  authorized  to  appoint  a  deputy  to 
act  for  him  in  each  of  the  counties,  and  the  fee  is  "  one  shil- 
"  ling  and  sixpence  for  the  viewing,  searching  and  packing 
"  or  repacking,  heading  and  branding  of  every  barrel,  and 
"  for  every  half  barrel  one  shilling  and  no  more ;"  but  this 
fee  is  uniform  throughout  the  state.  Now  the  construction 
contended  for,  will  in  the  first  place  break  in  upon  the  uni- 
formity of  fees ',  but  there  are  other  objections,  which  lead 
me  to  conclude,  that  both  the  fees  and  mode  of  inspection 
mentioned  in  this  act,  are  altered  and  intended  to  be  repeat- 
ed by  the  act  of  12th  March  1789.  By  the  third  section  of 
the  act  of  1727  it  is  said,  that  the  inspector  or  his  deputy 
shall  search  the  cask,"  by  opening,  unpacking  and  repacking" 
in  order  to  judge  of  the  soundness  and  true  package  of  the 
meat,  as  well  as  the  contents  of  the  cask  ;  whereas  the  act 
of  1789,  having  made  additional  and  better  provisions,  res« 


332  CASES  IN  THE  SUPREME  COURT 

1814.        pecting  the  dimensions  of  the  casks  and  manner  of  packing, 
"Tj  Eg  declares  in  the  fifth  section,  that  every  cask  shall  before  the 

Vf  sale   or   exportation    thereof,    be  carefully    examined    and 

REYNOLDS,  inspected  by  the  inspector,  u  who  shall  pass  as  merchant- 
"  able,  and  brand  with  the  arms  of  this  Commonwealth,  each 
"  and  every  cask,  being  of  the  materials  and  dimensions 
"  herein  before  directed  and  described,  and  which  shall 
"  respectively  contain  the  quantity  and  quality  of  salted  beef 
*l  or  pork  herein  before  mentioned  and  required,  packed  and 
"  secured  in  the  manner  aforesaid."  So  that  now  it  is  not 
always  necessary  to  unpack  and  repack  ;  and  accordingly  we 
find  in  the  seventh  section,  only  the  fee  of  sixpence  for 
inspecting  examining  and  branding,  and  the  additional  fee 
of  one  shilling  and  sixpence  for  every  tierce,  and  one  shil- 
ling for  every  barrel  or  half  barrel,  which  shall  be  repacked. 
The  inspector  is  able  to  judge  of  the  necessity  of  unpacking 
and  repacking  from  his  first  view.  We  find  upon  enquiry, 
that  since  the  making  qf  the  act  of  1789,  the  inspection  has 
been  confined  to  the  cit\ ,  it  not  having  been  the  practice  to 
appoint  deputies  elsewhere.  Upon  the  whole  then,  as  there 
is  no  inspection  act  out  of  the  city,  and  the  fees  within  the 
city  are  confined  to  cases  of  exportation,  or  sale  for  the 
purpose  of  exportation  or  ship  stores,  so  likewise  must  the 
penalties  be  confined  to  the  same  cases. 

I  am  therefore  of  opinion  that  the  judgment  of  the  Court 
of  Common  pleas  should  be  reversed,  because  upon  the 
facts  given  in  evidence,  the  defendant  neither  exported,  nor 
sold  for  ship  stores  or  exportation. 

YEATES  J.  and  BRAGKENRIDGE  J.  concurred. 

Judgment  reversed. 


OF  PENNSYLVANIA.  333 

1814. 


6b  333  Philadelphia, 

l^  MA  s  s  E  Y  against  THOMAS.  jX"'^' 

13      98  "/       ' 
34    317                                                     ,„  FRROR  An  agreement 

i«  HUMm.  for  an  amicable 


action  of  eject- 

N  Error  to  the  Common  Pleas  of  Chester,  the  case 


as  follows  :  a  submission  to 

Samuel  Thomas  the  plaintiff  below,  entered  into  an  agree-  mi«est  to  the 


ment  with  James  Massey  in  the  following  terms  :  " 

'*  ble  action  of  ejectment  in  the  Common  Pleas  of  Chester  under  which  rule 

.  the  referees  were 

H  county.    All  matters  in  variance  and  controversy  between  then  sworn,  and 
"  the  parties  respecting  a  boundary  line  between  them,  re-  /fe/j  ^^j^" 
"  ferred  to  Cseven  persons)  who.  or  any  four  to  decide;  and  the  act  of  March, 

.,     V       .  '  '  1806,  without 

"  the  said  parties  request  the  prothonotary  to  grant  an  order  proof  of  the 

"  accordinfflv."  agreement  by  a 

subscribing  wit- 

Til  e  agreement  was  dated  the  llth  of  August  18O9,  and  ness 
filed  qn  the  next  day;  and  on  the  9th  of  September,  six  ofactionofeject- 
the  referees  made  an  award.  "  The  referees  having  met  and  ™*"'  •{*  t^^J."1" 
"been   qualified    &c.,  we    find  in   favour  of  the  plaintiffpresmbes  the 

,  ,.,.  .  ,.  .  ,          ,          form  of  the  writ 

"  Samuel  I  homas,  by  running  a  line,  beginning  at  a  beach  on  Of  ejectment,  and 
'*  the  west  side  of  Crumb  creek,  now  marked  by  us  for  a»»Jtfc«h*Unot 

'  be  otherwise- 

"  corner,  standing  near  the  place  where  a  chesnut  formerly    Where  the  pro- 
"  stood;  thence  extending  south  63  degrees  west  243  per- 


"ches  to  a  stone,  set  in  the  ground  by  us  for  a  corner,  intherd.eclf.ration 

~    .  ,  nor  pleadings  are 

"  or  near  where  the  line  dividing  the  lands  of  James  and  necessary. 
"  Levi  Massey  intersects  the  same."  h.™g  S?w  ?c- 


Exceptions  were  filed  below  by  the  defendant,  which  . 

rii  i  referred  a  dispute 

Court  overruled,  confirmed  the  award,  and  entered  judg-  about  boundary, 

.   r       ..L        i    •    ..'/r  an  award  "  in  fa- 

ment  for  the  plaintiff.  "vourof  the 

"plaintiffby  run- 

Frazer  and  Tilghman  for  the  plaintiff  in  error.  par'ucuiariy  de- 

1.  There  was  no  regular  institution  of  a  suit.  The  agree-  Jjj^  ^'La 
ment  supposes  that  an  action  was  depending  but  does  not  award  to  the 

,        .          ,  r  T-L  plaintiff  of  the 

authorize  the  entry  of  one.   1  here  ought  to  have  been  a  writ,  land  in  dispute  up 

because  the  twelfth  section  of  the  act  of  21st  March  1  806,      he  dividing 

4.  Sm.  Laws  332,  says  that  all  writs  of  ejectment  shall  be 

in  a  form  there  given,  and  not  otherwise  ;  and  the  next  sec- 

tion enacts,  that  where  any  thing  is  directed  to  be  done  by 

act  of  assembly,  it  shall  not  be  done  according  to  the  pro- 

visions of  the  common  law. 

2.  There  was  no  description  of  the  land  in  dispute,  no 


334 


CASES  IN  THE  SUPREME  COURT 


1814.        declaration  filed,  no  statement,  nothing  by  which  the  matter 

MASSEY      *n  controversy  could  be  precisely  ascertained.     The  twelfth 

•v.  section  of  the  act  requires  that  a  description  should  be  filed. 

THOMAS.      The  situation,  boundaries,  and  quantity  of  the  land  should 

appear  on  record,  with  an  averment  that  the  defendant  is  in 

possession,  and  that  the  plaintiff  has  title ;  otherwise  the 

substance  of  the  act  is  not  complied  with. 

3.  There  is  nothing  in  the  submission  and  award  upon 
which  judgment  could  legally  be  rendered.     The  plaintiff 
does  not  merely  state  his  title  in  a  defective  manner,  but  he 
states  no  title  at  all ;  3  Bl.  Com.  395  j  and  the  award  finds 
nothing  in  certainty  for  the  plaintiff,  because  a  single  line 
includes  nothing,  and  it  is  not  even  said  on  which  side  of  it 
the  respective  parties  shall  hold.     It  is  neither  certain  nor 
final.  Grier  v.  Grier  (a),  5  Rep.  121  a.  35  a. 

4.  The  proceeding  was  under  the  act  of  1806,  because  the 
arbitrators  were  sworn.  When  the  reference  was  entered,  no 
suit  was  pending ;  and  in  such  case,  the  first  section  of  the 
act  requires  that  the  agreement  shall  be  proved  by  the  oath 
of  a  subscribing  witness,  before  the  award  can  be  entered 
upon  the  record.     This  was  omitted  here. 

Kittera  and  Sergeant  for  the  defendant  in  error. 

1.  The  agreement  of  the  parties  was  itself  the  institution 
of  a  suit  in  conformity  with  an  ancient  practice  in  this  state  ; 
and  ejectments  as  well  as  other  actions  may  be  instituted 
that  way.     The  act  of  assembly  intended  merely  to  destroy 
the  fiction  in  ejectment,  and  applies  only  to  cases  where  a 

,  writ  of  adversary  process  is  used.  It  did  not  mean  to  inter- 

fere with  the  practice  of  entering  amicable  actions,  because 
in  the  second  section  it  recognizes  them. 

2.  Descriptions,  and  declarations  are  also  for  cases  in 
which  a  writ  is  issued ;  not  for  a  case  of  amicable  suit  and 
reference,  where  the  defendant  wanted  no  description,  be- 
cause by  the  agreement  he  shewed  his  knowledge  of  the 
subject  in  dispute. 

3.  As  to  certainty,  by  a  reasonable  interpretation  of  the 
award,  it  will  appear  that  there  is  enough  for  the  judgment. 
The  dispute  was  about  boundary,  and  of  course  between 

(a)  1  J)all,  174. 


OF  PENNSYLVANIA. 


335 


the  adjoining  lands  of  the  parties.  To  find  for  the  plaintiff 
by  running  a  certain  line,  is  therefore  to  find  for  him  the " 
land  adjoining  his  other  land  up  to  that  line.  There  is  as 
much  certainty  in  this,  and  more,  than  in  the  old  form  of 
ejectment,  where  any  quantity  might  be  declared  for,  and 
any  less  quantity  recovered,  and  where  the  plaintiff  always 
took  possession  at  his  peril.  Cottmgham  v.  King  (a),  Kil- 
dare  v.  Fisher  (b),  Jonnes  v.  Hoel  (c),  Conner  v.  Heath  (</), 
Gardiner  v.  Bridge  Co.  (e).  In  fact  the  judgment  in  this 
case  is  a  mere  confirmation  of  the  award  ;  and  if  strictly 
there  is  not  enough  for  a  judgment,  there  is  for  a  proceed- 
ing by  attachment  to  enforce  performance,  by  which  the 
Court  can  perfectly  execute  the  intention  of  the  referees. 
Kitnkle  v.  Kunkle  (/),  1  Saund.  317".,  Davies  v.  Doe  Qf). 

4.  The  proceeding  was  under  the  act  of  1705,  and  the 
oath  of  the  referees  was  surplusage.  But  if  under  the  act  of 
18O6,  the  action  was  entered  before  the  agreement  of  refer- 
ence was  consummate,  because  the  prothonotary  was  re- 
quested to  make  out  the  order.  The  first  section  of  that  act, 
only  applies  to  cases  in  which  there  is  a  reference  and 
award,  before  the  agreement  is  filed. 

TILGHMAN  C.  J.  The  first  question  that  occurs,  is  under 
what  act  of  assembly  the  reference  in  this  case  was  entered. 
If  necessary  it  might  be  supported  under  the  old  act  of  1705. 
But  it  appears  to  me,  that  the  parties  considered  it  as  being 
under  the  act  of  March  1 8O6,  "  to  regulate  arbitrations,  and 
"  proceedings  in  courts  of  justice,"  because  the  arbitrators 
were  sworn,  which  is  not  required  by  the  act  of  1705.  And 
I  think  the  entry  may  be  maintained  under  the  second  sec- 
tion of  the  act  of  March  18O6.  By  that  section,  it  is  enacted, 
that  **  in  all  cases  where  an  amicable  suit  is,  or  may  be  en> 
*'  tered  in  the  prothonotary's  office,  the  plaintiff  and  defen- 
"  dant  may  either  in  vacation  or  term  time,  by  themselves, 
"  their  agents  or  attornies,  consent  to  a  rule  of  court,  for 
*'  referring  their  cause  to  certain  persons,  to  be  by  them  mu- 
"  tually  chosen."  Now  this  is  exactly  what  the  parties  did. 
But  it  is  objected,  that  when  the  rule  of  reference  was  taken 


MASSET 

v. 
THOMAS. 


(a)  1  Burr.  623. 
(6)  1  Stra.  71. 
(c)  Cro.  Eli:.  235. 


(rf)  5  JRurr.  2673. 
(e)  2  Binn.  450. 


(/)  1  Sail.  364. 
(?)  2  W.  Black.  892. 


336 


CASES  IN  THE  SUPREME  COURT 


1814.        out,  there  was  no  action  depending.     That  is  begging  the 
MASSEY      question.     The  same  paper  which  contained  the  agreement 
v.  to  refer,  contained  also  an  agreement  to  enter  an  amicable 

THOMAS,  action.  Each  must  go  in  its  order.  The  action  is  entered 
first,  then  follows  the  reference.  This  is  so  simple,  so  natural, 
so  agreeable  to  the  intent  of  the  parties  and  the  intent  of 
the  law,  that  I  cannot  consider  it  as  at  all  doubtful.  If  the 
agreement  had  not  been  carried  to  the  prothonotary  till 
after  the  making  of  the  award,  the  case  would  have  been 
different,  and  would  have  fallen  within  the  first  section  of 
the  act.  In  that  case  it  would  have  been  necessary  to  prove 
the  agreement  by  a  subscribing  witness ;  but  it  was  carried 
by  the  parties  themselves,  and  delivered  to  the  prothonotary 
as  the  foundation  of  the  proceedings.  Having  ascertained 
the  act  under  which  the  proceedings  were  had,  I  will  con- 
sider the  objections  to  the  proceedings  themselves. 

It  is  said,  first  that  the  action  could  not  be  instituted 
without  a  writ  in  the  form  prescribed  by  the  twelfth  section 
of  the  same  act,  21st  March  1806,  by  which  it  is  declared, 
that  "  all  writs  of  ejectment  shall  be  in  the  form  following 
"  &c."  But  this  is  to  be  understood  as  applicable  only  to 
cases  in  which  the  suit  is  commenced  by  writ,  and  by  no 
means  as  impairing  the  force  of  the  first  and  second  sections, 
by  which  all  persons  are  permitted  to  enter  suits  without 
writs.  The  objects  of  this  act  are  very  different;  one  relates 
to  arbitrations,  the  other  to  proceedings  in  court  without 
arbitration,  and  it  is  the  manifest  intent  of  the  act  to  en- 
courage arbitrations. 

The  second  objection  is  that  there  is  no  declaration  or 
description  of  the  property  demanded  by  the  plaintiff.  It  has 
been  more  than  once  determined  by  this  Court,  that  when 
the  proceeding  is  by  way  of  arbitration,  neither  declaration 
nor  pleadings  are  necessary.  We  see  the  inconvenience  very 
plainly.  But  such  is  the  system  established  by  the  legislature, 
and  such  it  must  remain  until  altered  by  a  competent  au- 
thority. 

The  last  and  most  serious  objection  is,  that  the  award  is 
so  uncertain  that  no  judgment  can  be  entered  upon  it.  It  is 
in  these  words,  "  we  find  for  the  plaintiff  by  running  a  line 
"  beginning  &c."  The  line  is  well  described,  but  the  diffi- 
culty is,  that  one  line  comprehends  no  space.  It  is  the  duty 
of  the  Court  to  support  the  award,  if  they  can,  because  the 


OF  PENNSYLVANIA. 


337 


case  has  been  decided  on  its  merits,  and  the  objection  is 
to  form.  From  the  agreement  of  the  parties  and  the  award" 
itself,  we  understand  that  the  plaintiff  and  defendant  held 
adjoining  lands.  Then  the  dividing  boundary  being  fixed,  the 
meaning  of  the  award  is,  that  the  plaintiff  is  to  have  the  land 
up  to  the  dividing  line  and  adjoining  his  other  land.  Cerium 
est  quod  cerium  reddipotest.  The  quantity  may  be  ascertain- 
ed by  measurement*  The  plaintiff  must  take  possession  at 
his  peril.  If  he  takes  land  not  included  in  the  award,  the 
Court  will  do  justice  on  a  summary  enquiry.  In  very  few 
declarations  in  ejectment  is  there  any  actual  certainty.  The 
plaintiff  demands  so  many  acres  of  land,  so  much  pasture, 
so  much  wood,  and  situate  in  a  certain  county*  But  until  it 
is  shewn,  no  person  could  discover  it  from  this  description  j 
and  when  it  is  shewn,  it  is  of  no  manner  of  consequence 
whether  the  quantity  accords  with  the  declaration  or  not, 
provided  it  does  not  exceed  it.  Yet  that  is  held  good  enough. 
In  fact  it  is  so  uncertain,  that  the  sheriff  has  a  right  to  de- 
mand an  indemnity  before  he  delivers  the  possession ;  for 
he  trusts  to  the  plaintiff's  shewing,  not  being  able  to  make 
any  thing  out  of  the  record.  I  am  therefore  induced  to  sup- 
port the  judgment  entered  on  this  award.  If  the  defendant 
should  think  himself  injured  by  the  possession  taken  by  the 
plaintiff,  he  may  apply  to  the  Court  for  speedy  redress. 

YEATES  J.  It  cannot  be  denied  that  it  was  the  intention 
of  the  parties  to  settle  a  disputed  line  by  judges  of  their 
own  choosing.  The  meaning  of  their  agreement  plainly  was, 
that  an  amicable  action  should  be  entered  in  ejectment,  and 
their  respective  rights  be  decided  by  the  persons  they  had 
nominated.  It  does  not  plainly  appear  that  the  parties  in- 
tended this  reference  should  take  place  under  the  act  of 
21st  March  1806,  although  the  referees  seem  to  have  so 
considered  it,  by  being  qualified  and  returning  their  report 
under  seal.  But  if  it  be  necessary  in  order  to  effectuate  the 
agreement,  that  it  should  be  considered  as  having  taken 
place  under  the  practice  which  has  obtained  under  the  old 
defalcation  act  of  1 705,  the  Court  will  so  consider  it,  ut  res 
mag-is  valeat  quam  percat. 

The  entry  of  an  action  of  ejectment  presupposes  a  claim 
of  lands  by  the  plaintiff  in  the  possession  of  defendant.  The 

VOL.  VI.  2  U 


1814. 


MASSEY 

v. 
THOMAS. 


338 


1814. 


MASSEY 

v. 
THOMAS. 


CASES  IN  THE  SUPREME  COURT 

former  recovers  only  such  part  as  he  can  shew  title  to.  By 
such  entry  of  an  amicable  action,  the  defendant  waives  the 
necessity  of  issuing  a  writ,  and  of  course  every  thing 
contained  in  it.  I  cannot  suppose  that  the  legislature  meant 
to  prevent  parties  appearing  without  previous  process.  An 
early  determination  of  the  controversy  seems  to  have  been 
a  favourite  object. 

A  controversy  respecting  the  boundary  line  between  two 
persons  necessarily  implies  that  their  lands  adjoin  ;  conse- 
quently when  the  true  division  line  is  fixed,  the  parties  re- 
spectively must  recede  from  their  former  possession,  or 
advance  in  their  possession  up  to  such  line.  The  juxta 
position  of  their  other  lands  readily  determines  on  which 
side  of  the  line  their  several  lands  lie.  I  think  the  award 
therefore  sufficiently  certain  in  ascertaining  the  boundary 
according  to  the  submission.  If  the  plaintiff  below  should 
take  possession  of  land  not  found  for  him,  the  Court  will 
interpose  in  a  summary  way,  and  grant  the  defendant  below 
relief.  I  am  of  opinion,  the  judgment  of  the  Common  Pleas 
should  be  affirmed. 


Philadelplda, 
Monday, 
July  25. 


BRACKENRIDGE  J.  concurred, 


Judgment  affirmed. 


M'ALLISTER   against   MAR  SHAH-. 


6b  338 
2sr339 
5r  225 
2pw  92 
3pw  91 
6ws311 
4  449 


An  assignment  ripHIS  was  an  ejectment  for  a  brick  messuage  and  lot  of 

executed  by  an  J  _  ° 

insolvent  dfebtor,     J.  ground,  situated  on  the  south  side  of  Chesnut  street  in 


the  city  of  Philadelphia. 

The  cause  was  tried  before  the  Chief  Justice  in  Novem- 


•with  an  under- 
standing, that 
part  of  tire  pro- 
pei  ty  assigned 

shall"  be  conveyed  ber  last,  when  by  consent  a   verdict  was  entered  for  the 

to  trustees  for  the  jrj  L  •  i  ••  ri_/~- 

use  of  his  family,  defendant,  subject  to  the  opinion  of  the  Court  upon  the 
is  so  far  as  it  ics-  evidt:nce,  which  by  the  report  of  his  honour  was  as  follows: 

pects  the  pi  oper-  T    ^  J 

ty  conveyed  in  The  plaintiff,  who  was  a  bona  fde  creditor  of  Charles 
roHy,  fraudulent  Marshall  the  defendant  and  his  son  Charles  Marshall  jr.  at 
and  void  as  to  ail  ^  tjme  of  t^e  assignment  hereafter  mentioned,  instituted 

creditors  who  do  p 

not  assent  to  the  a  suit  against  them  in  this  Court  to  September  term  1805, 
theanon™ssnentaing°^taine(l  a  judgment  at  March  term  1806,  issued  his  fi>fn* 
creditors  may  for  2y04  dollars  5O  cents  in  December  following,  by  virtue 

ttirCt.'  it  in  cJtccu." 


tion- 


OF  PENNSYLVANIA.  339 

of  which  the  premises  in  question  were  levied  on  ss  the        1814. 

property  of  the  defendant-,  and  on  the  5th  of  April  1807,  M*ALLISTER 

became  the  purchaser  at  sheriff's  sale  for  the  sum  of  500O  v. 

dollars.  At  the  time  of  the  sale  the  plaintiff  had  notice  of  a   MARSHALL. 

claim  to  the  property  by  Thomas  Parker  and  others,  trustees 

of  the  defendant's  wife  and  children  j  and  upon  receiving  his 

deed  from  the  sheriff,  he  paid  him  only  140  dollars  59  cents 

the  amount  of  the  costs,  and  retained  in  his  own  hands  the 

amount  of  the  purchase  money,  to  wait  the  event  of  this 

suit. 

The  title  under  which  the  defendant  asserted  his  posses- 
sion, stood  as  follows :  Charles  Marshall  and  Son  having 
stopped  paymentj  a  general  meeting  of  their  creditors  took 
place  in  the  city  of  Philadelphia  on  the  8th  of  January 
1805,  when  Henry  Pratt,  John  Morrell  and  William  Smith^ 
were  chosen  assignees,  and  were  directed  to  examine  the 
books,  accounts  and  affairs  of  the  debtors,  and  to  report  to 
the  creditors  at  another  meeting,  their  opinion  of  measures 
best  for  the  creditors^  and  also  for  Charles  Marshall  and  Son. 
The  number  of  creditors  who  attended  this  meeting,  or  the 
amount  of  debts  due  to  them,  did  not  apptar ;  nor  di  J  it  ap- 
pear that  any  report  was  made. 

A  power^of  attorney  bearing  date  the  28th  of  January 
1805,  was  executed  to  the  persons  above  named  as  assignees, 
by  fifty  seven  of  the  general  creditors,  authorizing  them, 
44  to  settle,  compromise  with,  and  receive  from  the  said 
"  Charles  Marshall  and  Son  jointly  or  separately,  for  our  use 
u  and  on  our  accounts,  such  monies,  goods,  properties  or 
"  effects  to  be  assigned  to  our  use  by  the  said  Charles  Mar- 
*'  shall  and  Son  jointly  or  separately,  or  any  other  person  or 
"  persons  on  their  account,  as  they  the  said  attornies  may 
"  think  proper ;  and  to  accept  the  same  in  full  satisfaction  and 
**  payment  of  our  and  each  of  our  demands ;  and  in  our  and 
"  each  of  our  behalves  to  sign  and  execute  to  the  said 
"  Charles  Marshall  and  Son  jointly  or  separately,  a  receipt 
"  in  full,  release,  or  releases  under  seal,  or  other  laruful  ac- 
*'  quittance  of  all  demands  &c.;  and  to  make  with  them  or  any 
"  other  person  on  their  behalf,  on  our  accounts  respectively, 
**  such  contract,  composition,  conveyance  or  assurance,  ax 
*'  under  all  the  circumstances  of  the  case  they  may  deem  most 
"  advisable  ;  and  to  dispose  of  and  convert  into  mont  y  all 
"  the  property  or  debts  to  be  received  as  aforesaid,  anti  pay 


340  CASES  IN  THE  SUPREME  COURT 

1814.        u  the  same,  and  all  other  money  to  be  received  under  this 
M'ALLISTER  "  trustj  equally  and  rateably  among  us,  in  proportion  to  our 
v.  "  several  demands*"     The  execution  of  this  power  by  37 

MARSHALL,  creditors  was  proved  by  a  subscribing  witness  on  the  5th 
of  April  1 805,  by  one  other  on  the  6th,  by  1 5  others  on 
the  16th  August  following,  and  the  execution  by  four  others 
was  not  proved.  A  like  power  was  given  by  five  lien  credi- 
tors, saving  their  respective  liens,  dated  the  31st  of  January 
1805,  and  executed  on  the  9th,  llth  and  12th  of  February. 
The  plaintiff  never  signed  the  power,  nor  assented  to  the 
proceedings. 

On  the  14th  of  February  1805,  Charles  Marshall  and  Son, 
by  their  deed  duly  executed,  reciting  the  two  powers  of 
attorney,  in  consideration  thereof  and  of  one  dollar,  trans- 
ferred and  conveyed  to  the  said  assignees  all  their  property 
real  vpersonal  and  mixed,  including  the  premises  in  the 
ejectment,  which  then  belonged  to  the  father,  in  trust,  that 
they  or  the  survivor  should  sell  the  real  estate  and  collect 
the  debts,  and  pay  and  distribute  the  money  thence  arising, 
in  equal  proportions  to  and  among  the  joint  and  several  cre- 
ditors of  the  said  Charles  Marshall  and  Son,  or  either  of 
them,  (provided  the  sum  to  be  paid  to  the  separate  creditors 
of  Charles  Marshall  junior  did  not  exceed  4OO  dollars) 
*'  who  shall  accept  the  same  in  full  and  absolute  satisfaction 
"  and  discharge  of  their  respective  claims  and  demands ,  and 
u  -who  have  already  executed,  or  shall,  if  resident  in  America, 
"within  six  months  from  the  date  hereof,  or  if  resident  in 
"  Europe,  within  twelve  months  from  the  date,  execute  the 
*l  said  power  of  attorney"  The  witnesses  to  this  deed  were 
Benjamin  Marshall  and  Joseph  Scott. 

By  deed  dated  the  next  day,  the  assignees  "  by  virtue  and 
**  in  pursuance  of  powers  vested  in  them  by  the  creditors  of 
,"  Charles  Marshall  and  Son,  and  in  consideration  of  one 
"  dollar  paid  to  them  by  the  grantees,  and  for  divers  other 
"  good  considerations,"  conveyed  to  Thomas  Parker,  Joseph 
Morris,  and  Thomas  Morris  junior,  the  premises  in  the 
ejectment,  a  ground  rent  of  15/.  5*.  Qd.  per  annum,  and 
all  the  plate  and  household  furniture  in  the  house,  "  in 
w  trust  for  the  s-jle  and  separate  use  of  Patience  Marshall, 
"wife  of  the  said  Charles  Marshall,  for  her  life,  and  after 
**  her  death  for  the  use  of  her  daughters  Elizabeth,  Pa- 


OF  PENNSYLVANIA.  341 

"  tience,  and  Mary  Ann,  as  tenants  in  common  in  fee  simple"       1814. 
with  power  in  the  mother  to  devise  the  premises  for  seven  MCALLISTER 
years  j  the  grantors  providing  at  the  same  time,  that  they           v. 
should  not  be  considered  as  covenanting  that  they  had  law-  MARSHALL. 
f ul  authority  to  make  the  conveyance,  but  oply  as  passing 
their  right,  title  and  interest,  as  derived  from  the  convey- 
ance made  to  them  by  the  said  Charles  Marshall  and  Son, 
and  the  power  vested  in  them  by  the  creditors.     The  wit- 
nesses to  this  deed  were  also  Benjamin  Marshall  and  Jo- 
seph Scott. 

On  the  9th  May  1806,  the  assignees,  by  virtue  of  the  two 
powers,  executed  a  full  and  complete  release  to  Charles 
Marshall  &  Son,  of  all  claims  and  demands  of  the  creditors 
who  had  signed  them. 

The  debts  of  Charles  Marshall  &?  Son  amounted  to  about 
113,000  dollars.  The  property  assigned  for  the  use  of  the 
creditors,  yielded  abdut  51,000  dollars,  exclusive  of  what 
was  given  to  the  wife  and  children,  which  was  variously 
estimated,  but  was  reasonably  worth  1O,OOO  dollars.  The 
creditors  who  released,  had  received  before  the  trial,  about 
37$  per  cent,  on  their  debts,  and  there  remained  about  110O 
dollars  to  be  distributed. 

It  did  not  appear  at  what  time  the  power  of  attorney  of 
the  28th  January  1 805  from  the  creditors  was  executed ; 
but  it  was  probable  that  a  majority  of  them  signed  it  before 
the  assignment. 

All  the  real  estate  belonged  exclusively  to  Charles  Mar- 
shall at  the  time  of  the  assignment. 

The  question  was  whether  the  deed  of  assignment,  and 
subsequent  conveyance  in  trust  for  the  family  of  Charles 
Marshall,  were  sufficient  to  protect  the  property  from  the 
plaintiff's  execution. 

Hopkinson  and  TiJghman*  for  the  plaintiff.  The  point  in 
question  is  whether  a  debtor  can  by  agreement  with  some  of 
his  creditors,  exempt  part  of  his  property  from  the  demands 
of  the  others.  That  this  has  been  the  case  here  cannot  be 
doubted.  The  assignment  of  the  14th,  and  the  conveyance  of 
the  15th  February,  are  clearly  one  transaction,  proceeding 

*  Mr.  Tilghman  represented  another  judgment  creditor  of  the  defendant,  who 
bad  neither  signed  the  power  of  attorney,  nor  assented  to  the  proceedings. 


342  bASES  IN  THE  SUPREME  COURT 

1814.        from  the  same  agreement,  executed  at  the  same  time,  and  be- 
rTT       ~ fore  the  same  witnesses,  and  were  the  result  of  a  compromise 
Vi  between  the  debtor  and  the  attornies  of  his  creditors.    It  is 

MARSHALL,  not  the  case  of  an  absolute  surrender  of  all  the  debtor's  pro- 
perty, and  a  subsequent  free  gift  of  part  by  the  creditors  J 
but  it  is  the  nominal  surrender  of  the  whole,  upon  a  previ- 
ous stipulation  and  compact  that  part  should  be  returned. 
Far  as  our  courts  have  gone,  they  have  never  come  up  to 
this.  They  have  never  permitted  a  debtor  to  make  the  law 
for  his  creditors,  as  to  the  amount  which  he  should  surren- 
der, but  merely  as  to  the  terms  upon  which  the  whole  should 
be  accepted.  The  utmost  reach  of  kindness  to  him  has  been 
to  permit  his  demanding  a  release,  as  in  Lippincctt  v.  Bar- 
ker (a);  but  in  that  case  it  will  be  recollected,  that  until  the 
death  of  the  late  judge  Smith,  the  Court  were  equally  divid- 
ed, and  that  the  majority,  who  ultimately  ruled  it,  only  re- 
cognize the  release,  where  a  sufficient  number  of  creditors 
to  absorb  the  whole  property,  sign  it  before  an  execution 
appears.  In  this  case  the  premises  were  never  out  of  Charles 
Marshall.  The  agreement  that  the  assignees  should  give  it  to 
his  family,  was  in  point  of  law  fraudulent  and  void,  as  to 
all  creditors  who  did  not  assent.  It  was  himself  that  gave, 
or  rather  that  attempted  to  give  to  his  family  ;  an  abortive 
attempt,  which  passed  nothing,  but  left  the  property  in  him 
as  it  stood  before.  If  it  passed  by  the  assignment,  the  le- 
gal estate  was  in  the  assignees  in  trust  for  the  creditors, 
who  having  signed  a  release,  the  property  reverted  to  the 
grantor,  subject  to  our  exceptions. 

The  assignment  is  void  as  to  the  plaintiff  for  another  rea- 
son. Before  he  could  receive  any  thing,  he  was  obliged  not 
merely  to  sign  a  power  of  attorney  to  execute  a  release, 
but  also  to  make  any  contract,  composition,  conveyance  or 
assurance,  -which  the  attornies  might  deem  most  advisable ; 
that  he  should  surrender  his  own  judgment,  his  own  will, 
his  entire  demand,  into  the  hands  of  third  persons,  to  do 
with  it  precisely  as  they  pleased,  and  to  return  to  the  debtor 
any  part  short  of  the  whole  of  his  property.  This  is  a  condi- 
tion too  monstrous  to  be  tolerated.  One  creditor  cannot  force 
another  to  make  a  present  to  the  debtor,  and  to  take  what 
persons  not  of  his  own  choosing  may  say  he  ought  to  have : 

a}  2  Sinn.  174. 


OF  PENNSYLVANIA.  343 

and  although  most  of  the  creditors  agreed  to  this,  that  does        1814. 
not  alter  the  case,  but  shews  how    perfect  the  scheme  of  M«ALLISTER 
coercion  was,  and  that  the  toleration  of  it  will  make  debtors  v. 

the  masters  of  their  creditors.  Though  we  have  not  paid  MARSHALL. 
the  sheriff,  he  is  liable  for  the  purchase  money  if  we  suc- 
ceed. We  however  only  want  our  money ;  and  we  are  wil- 
ling that  the  judgment,  if  entered  for  the  plaintiff,  shall  be 
defeasanced  upon  payment  of  the  principal,  interest  and 
costs  of  the  two  judgments,  although  the  premises  are  worth 
double  the  sum. 

Levy  and  Ingersoll  for  the  defendant.  The  plaintiff  cannot 
disposses  the  defendant,  because  upon  his  own  shewing  the 
latter  is  entitled  to  the  possession.  He  has  an  equitable  right 
to  the  house,  until  the  difference  between  the  plaintiff's 
judgment  and  the  amount  of  the  sheriff's  sale  is  paid  to  him. 
Chapman  v.  Tanner  (a),  Walker  v.  Preswick  (£),  Faivell  v. 
Fawell  (c). 

But  the  assignment  was  good.  Where  is  the  fraud,  if, 
when  there  is  no  bankrupt  law,  the  creditors  and  debtor 
make  compromises  upon  the  principle  of  the  bankrupt  law  ? 
They  have  done  no  more  here.  Sixty-six  out  of  sixty-nine 
creditors  have  agreed  to  the  arrangement.  The  debts  due 
to  those  creditors  amounted  to  nearly  twice  the  value  of  all 
the  real  and  personal  property  of  Charles  Marshall  &?  Son. 
They  have  given  to  his  family  a  portion  of  what  he  had 
given  to  them,  or  if  the  plaintiff  prefers  it,  they  agreed  to 
give  it  before  the  assignment,  for  it  makes  no  difference. 
They  had  a  right  to  do  so.  A  debtor  may  prefer  certain 
creditors ;  he  may  exclude  others  ;  he  may  make  a  release 
the  condition  of  his  preference  ;  he  may  convey  to  them  the 
whole  or  any  part  of  his  estate  not  exceeding  their  debts, 
which  they  may  accept  in  satisfaction,  and  do  with  it  as  they 
please.  Then  construing  the  arrangement  in  the  strongest 
way  against  him,  he  has  given  to  certain  creditors,  in  ex- 
clusion of  the  plaintiff,  all  his  property  for  debts  nearly 
double  its  amount ;  and  they,  whose  contracts  with  the  debt- 
or do  not  concern  the  excluded  person,  have  previously 
agreed  to  release  him,  and  to  convey  part  of  the  property 
for  his  family.  If  he  had  given  them  more  than  the  amount 

(a)  1  fern.  267-  (ft)  2  Vee.  622.  (r)  Ambl.  72*. 


344  CASES  IN  THE  SUPREME  COURT 

1814,        of  their  debts,  the  case  would  have  been  different ;  but  when 
M'ALLISTBR  ^e  cou^  have  absolutely  preferred  these  creditors,  and  as 
v.  absolutely  have  excluded  the  plaintiff,  and  have  made  the 

MARSHALL,  same  agreement  with  the  former  which  it  is  alleged  was 
made  here,  how  can  the  plaintiff  object  that  he  has  been  ex- 
cluded virtually.  Charles  Marshall's  family  have  none  of 
his  property,  but  the  property  of  the  creditors  who  signed 
the  power;  and  the  creditors  had  a  right  to  give  his  family 
a  part,  because  the  whole  did  not  amount  to  a  complete 
satisfaction.  Every  thing  that  was  done,  proceeded  from 
assignees  chosen  by  the  creditors,  and  possessing  their  con- 
fidence. It  was  not  a  case  in  which  the  creditors  were  sub- 
ject to  the  law  of  the  debtor,  to  by  any  means  the  extent  of 
Wilt  v.  Franklin  (a),  where  he  chose  his  own  assignees 
even  without  their  consent,  and  made  all  his  arrangements  at 
his  own  pleasure. 

But  if  the  conveyance  to  the  trustees  of  the  wife  is  void, 
the  legal  estate  nevertheless  passed  to  the  assignees  of  Mar- 
shall in  trust  for  the  creditors.  It  did  not  remain  in  Charles 
Marshall,  nor  was  there  a  trust  for  him.  The  plaintiff  there- 
fore purchased  nothing  at  the  sheriff's  sale. 

TILGHMAN  C.  J.  after  particularly  stating  the  case,  e- 
livered  his  opinion. 

When  the  cause  was  argued,  I  strongly  inclined  to  the 
opinion  that  the  trust  might  be  supported^  because  the  cre- 
ditors by  whom  it  was  created,  had  debts  fairly  due  from 
Charles  Marshall  and  Son,  to  a  much  greater  amount  than 
the  value  of  their  whole  property ;  so  that  the  relinquish- 
xnent  of  part  in  favour  of  the  family,  seemed  no  more  than 
giving  up  what  was  their  own  :  and  although  this  view  of 
the  case  is  just,  so  far  as  concerns  the  debtor  and  those 
creditors  who  wished  to  provide  for  his  family,  yet  on  full 
consideration  of  the  bearing  of  this  transaction  on  other 
creditors,  I  have  been  induced  to  alter  my  opinion.  We 
have  no  bankrupt  law.  In  considering  therefore  what  an  in- 
solvent debtor  may  do,  and  what  he  may  not  do,  as  to  the 
disposal  of  his  estate,  we  must  havejrecourse  to  the  common 
law,  and  the  provisions  of  the  statute,  13  Eliz.  c.  S.  The 
debtor  may  prefer  one  creditor  to  another,  and  for  this  pur- 

(<z)  1  Sinn.  502. 


OF  PENNSYLVANIA.  345 

pose  he  may  make  a  conveyance  of  any  part  of  his  property        1814. 


at  its  fair  value.  But  he  cannot  under  a  pretence  of  prefer- 
ring  one  creditor,  make  a  conveyance  for  the  purpose  of  v. 

hindering  others  from  coming  at  his  property,  nor  above  all  MARSHALL 
can  he  by  any  mode  of  contrivance  or  secret  trust,  cover 
any  part  of  his  effects  from  the  legal  process  of  any  of  his 
creditors.  If  Charles  Marshall  had  proposed  to  part  of  his 
creditors  to  accept  a  conveyance  of  his  whole  estate,  for  the 
purpose  of  excluding  all  others,  who  would  not  consent  that 
a  portion  of  it  should  be  secured  for  his  wife  and  children, 
it  cannot  be  doubted  but  the  proposal  would  have  been  frau- 
dulent, and  its  acceptance  by  the  creditors  could  not  have 
washed  away  the  stain.  I  do  not  believe  that  Mr.  Marshall 
intended  in  fact  to  defraud,  and  I  am  very  sure,  from  per- 
sonal knowledge  of  many  of  the  creditors,  that  they  were 
actuated  solely  by  motives  of  benevolence.  But  we  must 
discard  all  private  knowledge  or  conjecture,  and  consider 
the  case  as  it  is  presented  on  the  written  evidence.  Now 
when  I  look  at  the  assignment,  and  the  reconveyance  of  part 
of  the  assigned  property  in  trust  for  the  family  of  the 
assignor,  they  appear  to  be  one  transaction,  as  much  as  if 
the  whole  had  been  contained  in  the  same  deed.  I  must  take 
it,  that  part  of  the  consideration  of  the  assignment  was,  that 
there  should  be  a  reconveyance  ;  in  other  words  the  assign- 
ment was  executed,  with  an  understanding  that  the  family 
should  be  provided  for  by  a  gift  of  the  house  and  lot.  The 
condition  imposed  on  all  the  creditors  who  had  not  executed 
the  power  of  attorney,  was  unreasonable  ;  not  only  were  they 
to  release  all  demands,  but  also  to  leave  it  to  the  discretion 
of  persons  whom  they  had  not  chosen,  to  relinquish  at  their 
pleasure  any  portion  of  the  property  received  from  their 
debtors.  This  is  going  further  than  is  warranted  by  the 
decisions  of  this  or  any  other  court.  In  Lippincott  v.  Barker^ 
it  was  held,  that  an  assignment  of  all  the  debtor's  property,  to 
be  equally  divided  among  all  the  creditors  who  should  sign 
a  release  within  a  given  time,  was  valid.  The  opinion  of  the 
Court  was  restricted  to  the  particular  circumstances  of  that 
case,  in  which  creditors,  to  a  greater  amount  than  the 
whole  estate,  as  soon  as  they  were  informed  of  the  assign- 
ment, agreed  to  accept  it,  and  executed  releases.  If  the 
Marshalls  had  made  an  absolute  conveyance  of  their  whole 
VOL.  VI.  2  X 


346  CASES  IN  THE  SUPREME  COURT 

1814.       estate  to  any  number  of  creditors  whose  debts  were  fairly 
M'ALLISTER  eclual  to  tne  estate,  it  would  have  been  good,  and  those  cre- 
v.  ditors  might  afterwards  have  done  what  they  pleased  with 

MARSHALL,  it.  But  that  is  not  the  case.  Who  can  say  that  the  assign- 
ment would  have  been  executed,  without  the  agreement  to 
reconvey  a  part  ? 

Very  important  consequences  are  involved  in  the  de- 
cision of  this  cause.  If  the  trust  deed  be  supported,  it  will 
be  an  inducement  for  every  insolvent  debtor,  to  insist 
on  a  provision  for  his  family.  And  he  will  accomplish  his 
object,  if  he  can  but  prevail  on  a  number  of  creditors,  who 
have  debts  equal  to  his  whole  estate,  to  accept  his  offer. 
There  will  not  be  wanting  powerful  motives  to  join  in  this 
scheme.  Each  creditor  will  reflect,  that  if  he  refuse  he  may 
lose  every  thing.  What  the  law  authorizes,  he  has  no  reason 
to  think  unjust  or  immoral,  and  then  even  honest  men  may 
fall  into  a  practice,  which,  without  any  ill  intention  on  their 
part,  will  be  ratifying  under  the  sanction  of  this  Court  a  sys- 
tem of  fraudulent  bankruptcy.  It  is  no  satisfaction  to  the 
excluded  creditors  to  tell  them,  that  they  have  their  remedy 
by  actions  against  the  defendant.  1'heir  actions  are  fruitless, 
because  by  the  laws  of  Pennsylvania,  every  defendant  who 
surrenders  his  property  for  the  use  of  his  creditors,  is  dis- 
charged from  imprisonment.  But  his  wife  and  children  are 
not  obliged  to  surrender  their  property.  If  then  we  decide 
that  the  property  is  legally  vested  in  the  wife  and  children, 
it  will  remain  to  them,  and  the  head  of  the  family  will 
nevertheless  be  entitled  to  his  discharge.  These  are  the 
considerations  which  have  induced  me  to  be  of  opinion,  that 
the  assignment  was  void,  so  far  as  concerns  those  creditors 
who  refused  to  accept  it.  Consequently  the  property  in  ques- 
tion, having  never  passed  from  Charles  Marshall,  was  sub- 
ject to  the  execution  of  the  plaintiff,  who  is  entitled  to  judg- 
ment in  this  ejectment. 

YEATES  J.  A  legal  objection  has  been  raised  to  the 
plaintiff's  recovery  in  this  case,  founded  on  his  subscription 
in  the  sheriff's  docket.  He  has  paid  only  140  dollars  69  cents, 
the  amount  of  the  costs  of  his  action  against  Charles  Mar- 
shall and  Son,  and  retained  in  his  own  hands  the  amount  of 
the  purchase  money.  Suppose  the  amount  of  his  debt  and 
interest  at  the  time  of  the  execution  of  the  deed  to  be  2962 


OF  PENNSYLVANIA.  347 

dollars  93  cents,  this  sum  added  to  the  costs  paid,  there        1814. 
would  remain  1896  dollars  38  cents  to  be  paid  by  him  out  M'ALLISTEH 
of  the  consideration  money  of  500O  dollars.     I  see  no  force  v. 

in  this  objection.  The  sheriff  has  signed  a  receipt  for  the  MARSHALL. 
purchase  money,  and  has  acknowledged  the  deed.  He  is 
therefore  liable  for  the  balance  of  1896  dollars  38  cents,  to 
the  party  who  may  lawfully  demand  it.  Should  the  plain- 
tiff succeed  in  the  present  instance,  he  would  become  respon- 
sible to  the  sheriff  under  his  written  engagement.  But 
should  he  fail  therein,  there  could  be  no  reason  whatever  to 
charge  him  with  the  balance.  It  cannot  be  pretended,  that 
while  the  wife  and  daughters  of  Charles  Marshall  hold  and 
enjoy  the  premises  in  question,  the  purchaser  at  the  sheriff's 
sale  should,  after  losing  his  debt  and  costs,  pay  him  the  sur- 
plus of  the  purchase  money. 

More  serious  difficulties,  arising  from  the  peculiar  cir- 
cumstances of  this  case,  occur  to  our  consideration.  [His 
honour  here  particularly  stated  the  facts.] 

The  doctrine  of  assignments  executed  in  favour  of  credi- 
tors by  an  insolvent  debtor,  has  been  much  agitated,  and 
has  undergone  the  full  consideration  of  this  Court  in  the 
late  cases  of  Wilt  v.  Franklin,  1  Binney  5O2,  and  of  Lip- 
pincot  v.  Barker,  2  Binney,  1 74.  In  the  last  case  it  was  held 
by  a  majority  of  the  Court,  that  an  assignment  by  a  debtor 
of  all  his  property  to  trustees,  for  the  benefit  of  such  credi- 
tors as  should  within  four  months  execute  a  release  of  all 
demands,  was  good,  provided  certain  creditors  agreed  to  ac- 
cept it  on  that  condition.  I  see  no  cause  to  recede  from  my 
opinion  delivered  in  that  case.  I  freely  admit,  that  inde- 
pendently of  the  bankrupt  laws,  a  debtor  may  prefer  one  set 
of  creditors  to  another,  and  that  such  a  measure  would  nei- 
ther be  illegal  nor  immoral.  The  present  case  goes  much 
farther.  From  the  internal  evidence,  which  the  two  powers 
of  attorney,  the  deed  of  assignment  of  the  14th  February,  and 
the  release  to  the  trustees  of  the  next  day,  carry  with  them, 
independently  of  the  circumstance  of  the  two  last  deeds  being 
attested  by  the  same  witnesses,  I  am  constrained  to  con- 
clude, that  the  assignment  was  made  in  full  and  perfect  con- 
fidence, that  Mrs.  Marshall  and  her  daughters  should  re- 
ceive the  provision  contained  in  the  release,  and  that  this 
was  the  great  leading  motive  to  make  the  assignment.  The 


348  CASES  IN  THE  SUPREME  COURT 

1814.        creditors  at  their  first  meeting  directed  the  assignees  whom 
M*ALL  STER  tney  nat^  chosen,  to  import  the  measures  best  for  themselves 
t?.          and  also  for  Charles  Marshall  and  Son*     The  powers  of  at- 
MAUSHALL.  torney  contemplate  a  compromise  of  mutual  interest,  and 
the  proviso  in  the  conclusion  of  the  conveyance  to  the  trus- 
tees, shews  manifestly  the  sense  of  the  parties  on  the  whole 
transaction.  I  therefore  consider  the  assignment  and  release, 
though  purporting  on  the  face  of  them  to  be  made  with  an 
intervening  day,  as  contemporaneous  acts  depending  on  each 
other,  and  in  fact  as  one  instrument.  Of  course  the  question 
in  my  view  of  it  is  reduced  to  a  single  point,  whether  the 
assignment  and  release  under  these  circumstances  can  legally 
bar  such  creditors  as  refuse  to  accede  to  those  measures. 

It  has  been  urged,  that  one  or  more  creditors  may  legally 
accept  of  an  assignment  of  the  whole  or  any  pan  of  the 
estate  of  their  debtor  in  payment  of  their  demands,  provid- 
ed it  does  not  exceed  in  value  the  amount  of  his  or  their 
debts  ;  and  that  being  so  entitled,  they  may  convey  it  to 
whom  they  think  proper.  This  is  not  that  case.  The  terms 
held  out  to  the  creditors  are  unreasonably  hard  and  severe. 
Unless  they  would  surrender  up  their  undoubted  individual 
right  of  judgment,  and  subscribe  the  letter  of  attorney,  giv- 
ing a  carte  blanche  to  the  assignees,  ratifying  the  trust  for 
the  wife  and  children  of  Charles  Marshall,  they  are  excluded 
from  any  participation  of  the  dividends.  This  appears  to 
me  a  species  of  compulsion.  I  have  no  doubt  that  the  most 
humane  feelings  for  an  unfortunate  family,  induced  this  ar- 
rangement, but  my  moral  sense  imperiously  dictates  to  me, 
that  until  the  debts  of  the  head  of  the  family  are  paid,  his 
relatives  cannot  justly  entitle  themselves  to  any  portion  of 
his  property. 

The  trust  created  by  the  assignees  is  certainly  valid  against 
the  subscribing  creditors,  who  by  their  subscription  have 
assented  to  their  acts.  With  their  own  property  they  might 
do  as  they  pleased,  and  were  under  no  control.  But  a  com- 
position made  in  order  to  exempt  any  part  of  the  property 
from  creditors,  who  might  refuse  their  assent  to  the  prof- 
fered terms,  seems  to  me  unavailing  as  to  the  dissenting 
creditors,  and  taints  the  whole  transaction.  Ltppincot  v. 
Barker  was  professedly  decided  by  the  majority  of  the 
Court  under  the  peculiar  circumstances  of  that  case*  From 


OF  PENNSYLVANIA.  349 

the  facts  here  shewn,  I  am  fully  satisfied  that  a  trust  for        1814. 
the  family  of  Charles  Marshall  was  originally  intended 


many  of  the  creditors,  which  I  cannot  conceive  binding  on  v. 
those  creditors  who  have  been  unwilling  to  authorize  that  MARSHALL. 
measure.  I  am  not  prepared  to  say,  nor  is  it  necessary  that 
I  should  express  an  opinion,  whether  the  humane  views  of 
the  creditor  might  not  have  been  effectuated  in  some  other 
mode,  or  whether  it  could  be  done  legally.  The  object  of 
the  assignment  has  ceased;  the  debts  of  the  subscribing  cre- 
ditors have  been  fully  released  by  their  attornies  in  fact, 
constituted  for  that  purpose  with  full  and  ample  powers* 
Consequently  the  premises  in  question  revested  in  the  for- 
mer owner  as  to  non-subscribing  creditors,  and  were  liable 
to  their  execution. 

I  am  therefore  of  opinion  that  judgment  be  entered  for 
the  plaintiff,  to  be  defeasanced  by  the  payment  of  principal 
interest  and  costs  of  the  two  judgments  entered  for  the 
plaintiff  and  John  Erskine  against  the  defendant,  in  confor- 
mity to  the  terms  proffered  by  his  counsel  in  the  course  of 
the  argument. 

BRACKENRIDGE  J.  The  following  discourse  which  I  have 
found  amongst  my  papers,  would  seem  to  have  some  bearing 
on  the  case  before  us.  It  is  part  of  a  sermon  from  the  16th 
chapter  of  St.  Luke's  Gospel,  beginning  with  the  first  verse. 
"  There  was  a  certain  rich  man,  which  had  a  steward,  and 
"  and  the  same  was  accused  unto  him  that  he  had  wasted  his 
"  goods.  And  he  called  him  and  said  unto  him,  how  is  it 
"  that  I  hear  this  of  thee  ?  Give  an  account  of  thy  steward- 
"  ship,  for  thou  mayest  be  no  longer  steward.  Then  the 
"  steward  said  within  himself,  what  shall  I  do  ?  For  my  lord 
"  taketh  away  from  me  the  stewardship.  I  cannot  dig,  to  beg 
*'  I  am  ashamed.  I  am  resolved  what  to  do,  that  when  I  am 
"  put  out  of  the  stewardship,  they  may  receive  me  into  their 
u  houses.  So  he  called  every  one  of  his  lord's  debtors  unto 
"  him  and  said  unto  the  first,  how  much  owest  thou  unto 
"  our  lord,  and  he  said  an  hundred  measures  of  oil.  And  he 
"  said  take  thy  bill,  and  sit  down  quickly,  and  write  fifty. 
"  Then  said  he  to  another,  and  how  much  owest  thou  ?  And  he 
"  said  an  hundred  measures  of  -wheat.  And  he  said  unto  him, 
"  take  thy  bill  and  write  four  score.  And  the  lord  commend- 


350  CASES  IN  THE  SUPREME  COURT 

1814.        "  ed  the  unjust  steward,  because  he  had  done  -wisely ;  for 

M'ALLISTER  "  the  children  of  this  world  are  in  their  generation  wiser 

«•  "  than  the  children  of  light.  And  I  say  unto  you,  make  you 

MARSHALL.   «  frjen(js  of  the  mammon  of  unrighteousness,  that  when  ye 

"fail,  they  may  receive    you  into  everlasting  habitations. 

44  He  that  is  faithful  in  that  which  is  least,  is  faithful  also  in 

"  much ;  and  he  that  is  unjust  in  the  least,  is  also  unjust  in 

"  much.     If  therefore  ye  have  not  been  faithful  in  the  un- 

"  righteous  mammon,  who  will  commit  to  your  trust  thte 

**  true  riches  ?     And  if  ye  have  not  been  faithful  in  that 

44  which  is  another  man's,  who  shall  give  you  that  which  is 

44  your  own  ?  No  servant  can  serve  two  masters ;  for  either 

"  he  will  hate  the  one  and  love  the  other,  or  else  he  will 

44  hold  to  the  one  and  despise  the  other.   Te  cannot  serve  God 

44  and  mammon." 

44  This  steward  was  an  insolvent  man,  who  was  unable 
4t  to  pay  over  to  his  lord  the  monies  which  he  had  re- 
<*•  ceived,  and  for  which  he  had  become  his  debtor.  He 
44  cast  himself  therefore  about  to  settle  the  account  in  collu- 
44  sion  with  the  debtors  of  his  lord.  The  lord  commended 
u  the  unjust  steward,  not  it  is  to  be  presumed,  because  he 
44  was  unjust,  but  because  he  was  necessitous.  He  had  done 
44  4  wisely*  for  that  occasion,  and  not  what  the  children  of 
44  fight  would  do,  but  not  more  wisely  for  all  times  than  the 
44  children  of  light  would  do,  for  I  will  venture  to  say,  his 
"  lord  would  never  trust  him  again. 

44  In  our  day  and  in  this  generation,  the  children  of  this 
44  world  think  themselves  wise  in  defrauding  their  creditors, 
44  and  doubtless  they  exhibit  no  small  share  of  worldly  wis- 
"•  dom  in  the  devices  to  which  they  resort  in  accomplishing 
44  that  object.  But  my  brethren,  I  take  it  there  is  but  a  shade 
44  of  difference  in  law,  and  none  at  all  in  conscience,  between 
44  highway  robbery  and  the  compelling  a  creditor  to  take 
44  less  than  his  due,  at  the  same  time  that  by  any  contri- 
44  vance,  or  as  the  lawyers  call  it,  shift  or  chevisance,  you 
41  save  something  for  yourself. n 

So  far  the  divine.  Would  not  the  moralist  say  the  same 
thing  ?  For  what  is  religion  but  morality,  with  a  sanction 
drawn  from  a  future  state  of  rewards  and  punishments  ? 
Would  not  the  jurist  say  the  same  ?  For  what  is  law,  but 
the  enforcement  of  justice  amongst  men?  The  reddere  situm 
cuique  is  the  definition  of  justice.  Would  not  the  politician 


OF  PENNSYLVANIA.  351 

say  the  same  ?    For  the  happiness  of  the  social  state,  i*  but        1814.  t 
the  aggregate  of  individual  happiness,  and   this  depends  M'ALLISTER 
upon  the  moral  rectitude  of  each  one  of  the  community*  An  v. 

honest  man  may  not  be  able  to  pay  his  debts,  owing  to  mis-  MARSHALL. 
fortune,  or  to  disappointment  in  his  calculations.  But  no 
honest  man,  or  child  of  light  as  the  divine  would  say,  would 
withhold  the  rag  upon  his  back,  or  upon  that  of  his  child, 
if  the  creditor  who  has  a  demand  against  him  would  insist 
upon  pulling  it  off.  He  would  not  conceal  a  rag,  or  annex  a 
condition  to  the  surrender  of  it,  that  the  creditor  should  re- 
lease all  further  claims  on  the  future  rag  which  he  might 
acquire  by  his  labour  and  industry  in  life.  But  not  so  with 
insolvent  debtors.  They  take  the  benefit  of  the  act,  and 
make  a  surrender  of  their  effects  upon  oath  ;  but  there  are 
few  instances  where  there  is  not  reason  to  suspect,  that  there 
is  concealment  in  the  surrender  which  they  make,  and  this, 
from  the  evidence,  that  in  most  cases  they  are  seen  to 
emerge  with  sometimes  not  less  and  sometimes  more  ease 
of  circumstances  than  before.  As  the  heathen  poet  says  to 
his  mistress,  it  may  be  said  to  the  insolvent  when  he  has 
taken  the  oath, 

"  Simul  obligasti 

"  Perfidum  votis  caput,  enitescis 

"  Pulchrior  multo, — 

He  is  like  the  chrysalis,  that  has  cast  its  coat  and  takea 
wing ;  it  shines  away  with  a  splendor  which  it  had  not  be- 
fore. In  a  proceeding  towards  creditors,  independent  of  an 
insolvent  act,  I  am  unfavourable  to  the  debtor  making  a 
bankrupt  law  for  himself.  An  unconditional  surrender  of  all 
his  effects,  until  his  debts  are  paid,  if  he  surrenders  at  all, 
is  the  only  principle  that  can  receive  my  sanction  in  a  court 
of  justice.  There  are  decisions  to  the  contrary  in  this  Court; 
but  it  will  require  a  series  of  decisions  by  men  of  different 
educations  and  habits  of  thinking,  before  I  can  yield 
to  them.  If  these  decisions  are  founded  in  nature  and 
truth,  they  will  prevail,  if  not,  they  will  go  by  the  board. 
Commenta  hominum  delet  dies,  judicia  naturae  confirmat. 
At  the  same  time  that  I  thus  withhold  my  assent  to  these 
decisions,  I  am  far  from  inculcating  an  unfeeling  disposition 
towards  debtors.  I  say  to  the  debtor,  "  do  justice,"  to  the 


352  CASES  IN  THE  SUPREME  COURT 

1814.        creditor,  "  love  mercy,"  and  this  is  the  language  of  the  scrip- 

M'ALLIBTER  ture*  **ut  *  k°ld itthe  dutv°f the  debtor  to  surrender  himself 
v.  to  the  humanity  of  the  creditor,  and  not  to  attempt  to  take 

MARSHALL,  an  undue  advantage  of  his  situation  as  a  creditor,  and  to 
impose  terms.  And  this  will  be  found  in  the  end  to  be  the 
wisest  course  for  the  debtor  himself,  even  with  a  view  to 
his  getting  forward  again  in  the  world,  notwithstanding 
what  i«  ironically  said  in  the  text  of  the  sermon,  from  which 
I  have  given  an  extract.  And  that  it  was  ironically  said  in 
the  opinion  of  the  divine  whom  I  have  quoted,  will  appear 
from  the  concluding  sentence  of  his  discourse.  "  My  breth- 
"ren,"  says  he,  "  to  conclude,  the  children  of  light  who  are 
u  thought  fools,  are  in  reality  wiser  than  these  children  of 
"  the  world.  An  unfortunate  and  insolvent  man,  who  acts 
"  fairly,  will  in  ninety-nine  instances  out  of  an  hundred,  find 
u  a  better  account  in  the  credit  of  integrity  which  he  will 
"establish,  than  in  concealment,  or  a  compulsory  accept- 
"  ance  of  a  port  for  the  whole  on  the  part  of  the  creditors. 
w  For  if  there  were  not  a  generosity  in  man,  there  is  a 
"  secret  operation  of  Providence,  which  attends  and  blesses 
"  the  industry  of  the  honest.  It  is  the  language  of  the  scrip- 
"  ture,  l  I  have  been  young  and  now  am  old,  yet  have  I  not 
"  seen  the  righteous  forsaken,  nor  his  seed  begging  bread?  ' 
In  the  case  before  us  I  am  of  opinion  for  the  plaintiff, 
and  upon  this  principle,  were  there  nothing  else  in  the  case, 
that  the  term  of  a  release  was  coupled  with  the  surrender, 
and  that  time  was  given  for  creditors  to  come  in,  who  might 
be  •willing  to  accept  and  give  a  release,  which  was  to  the 
delay  of  other  creditors,  who  might  choose  to  go  on,  and 
recover  against  the  debtor.  I  consider  it  as  a  principle  that 
ought  not  to  be  endured  or  made  a  part  of  the  law. 

Judgment  for  plaintiff. 


OF  PENNSYLVANIA.  353 

MILNE  against  MORETON.  1S14. 

fb353  TOVRROP  Plliladelphia, 

IN  fcRROR.  Monday, 

Ju>y 25 

HT'HIS  was  a  writ  of  error  to  the  District  Court  of  the    A»  assignment 

±,  ,•    it,  ••,:••          i_  i  i      i  bv  commissioners 

city  and  county  of  Philadelphia,  where  a  judgment  had Of  bankrupt  in 

been  rendered  in  favour  of  Moreton  the  plaintiff  below,  up-  Enffland'  d«es 

l     not  prevent  an 

OH  the  following  Case.  attachment  of  the 

bankrupt's  effects 
by  an  American 

"Walter  Morton  the  plaintiff  is  a  merchant  residing  in cre(lltor- 
**  the  city  of  New  Tork,  and  a  citizen  of  the  United  States, 
"  and  Thomas  Topham,  the  defendant  in  the  foreign  attach- 
*'  ment,  is  a  subject  of  the  King  of  Great  Britain  residing 
"  in  England. 

"  The  defendant  Thomas  Topham,  through  the  plaintiff's 
"  agent  in  Liverpool,  transmitted  to  the  plaintiff  a  consider- 
"  able  quantity  of  goods  to  be  sold  on  commission,  and  re- 
"  ceived  from  the  agent  an  advance  on  account  of  them. 
"  The  goods  were  sold  in  this  country,  an  account  sales 
"  was  rendered  on  the  20th  July  1 807,  and  the  nett  pro- 
"  ceeds  of  sales  were  less  than  the  sum  advanced  in  Liver- 
"pool*  This  attachment  issued  for  the  balance  on  the  5th 
"December  1807. 

"On  the  22d  September  1807,  a  commission  of  bankrupt, 
"  from  the  lord  chancellor  of  England,  issued  against  the  de- 
"  fendant  in  the  attachment,  on  the  9th  October  in  the  same 
u  year  a  provisional  assignment  was  executed  of  all  his  es- 
"  tate  real  and  personal,  and  on  the  29th  of  the  same  month 
"  the  final  assignment  was  executed. 

"Goods  of  Thomas  Topham  are  admitted  in  the  hands 
"  of  Richard  Milne  the  garnishee,  which  were  the  property 
"of  the  defendant  before  any  act  of  bankruptcy  committed 
"by  him,  and  it  is  also  admitted  that  their  amount  equals 
"  the  sum  found  in  the  inquisition. 

"  The  question  submitted  to  the  Court  is,  whether  the 
"  goods  in  the  hands  of  the  garnishee  are  liable  to  this 
"  attachment,  notwithstanding  the  bankruptcy  of  the  de- 
"  fendant? 

"  If  the  Court  shall  be  of  opinion  that  they  are  so  liable, 
ujudgment  to  be  entered  for  the  plaintiff.  But  if  the  Court 
"  shall  be  of  opinion  that  they  are  not  so  liable,  then  judg- 
VOL.  VI.  2  Y 


354 


1814. 


MILNE 
v. 

MORETON. 


CASES  IN  THE  SUPREME  COURT 

"  tnent  to  be  entered  for  the  defendant ;  it  being  agreed,  that 
* "  for  the  purposes  of  a  writ  of  error,  either  party  shall  be  at 
"  liberty  to  consider  the  judgment  of  the  Court  which  shall 
"  be  rendered  hereupon,  as  though  it  were  rendered  upon 
"  the  finding  of  a  special  verdict." 

The  case  was  twice  argued  in  this  Court,  first  at  the  ad- 
journed term  in  June  1813,  by  Montgomery  and  Binneyfor 
the  plaintiff  in  error,  and  by  N.  Chauncey  and  Chauncey  for 
the  defendant ;  and  again  in  March  last,  by  the  same  counsel 
with  the  addition  of  Ingersoll  for  the  plaintiff  in  error,  and 
Rawle  for  the  defendant. 

Arguments  for  the  plaintiff  in  error.  The  attachment  must 
be  defeated  for  two  reasons,  1.  Because  Topham's  debt  hav- 
ing been  contracted  in  England,  with  reference  to  the  laws 
of  England,  it  was  discharged  by  his  certificate  (a).  2.  Be- 
cause by  the  assignment  of  the  commissioners,  Topham's 
effects  in  the  hands  of  Milne,  were  equitably  transferred  to 
the  assignees. 

1.  The  debt  was  contracted  in  England,  because  the  money 
was  there  advanced  to  the  bankrupt,  the  goods  were  furnished 
there,  and  there  the  implied  assumpsit  originated,  that  in 
case  the  money  advanced  should  exceed  the  nett  proceeds  of 
the  goods,  Topham  would  pay  the  difference.    The  law  of 
England  was  therefore  in  the  view  of  the  parties.  The  pro- 
mise was  to  be  performed  there.  Robinson  v.  Bland  (£), 
Champant  v.  Ranelagh  (c).  This  being  the  case,  by  a  variety 
of  decisions  a  discharge  under  the  law  of  that  country,  dis- 
charges the  debt.  Burrows  v.  Jemino  (</),  Greene  v.  Sar- 
miento  (<?),  Smith  v.  Smith  (/),  §>uin  v.  Keefe  (§•),  Smith  v. 
Buchanan  (A),  Pedder  v.  M- Master  (z).    At  all  events  Top- 
ham  could  not  have  been  held  to  bail  by  Moreton^  and  there- 
fore his  property  could  not  be  attached. 

2.  The  assignment  of  the  commissioners  passed  Topham's 
interest  in  the  debt  due  to  him  by  Milne. 

Any  appropriation  or  transfer  of  a  fund,  though  it  be 
merely  equitable,  will  prevent  a  subsequent  attachment.  In 

(a)   Although  the  case  does  not  state  a  certificate,  it  was  argued  on  both  sides 
upon  the  ground,  that  a  certificate  had  been  granted. 

(6)  2  Burr.  1079.  (e)  1  Browne.  Jlpp.  30.        (A)   1  East  6. 

(c)  Free.  Chan.  128.          (/)  2  Johns.  241.  (f)  8  D.  &  E.  609. 

(rf)  2  Stra.  733.  (,§•)  2  H.  Black.  553. 


OF  PENNSYLVANIA.  355 

Fitzgerald  v.  Caldwell,  formerly  decided  in  this  Court,  a        1814. 
letter  by  a  creditor  to  his  debtor,  appropriating  the  debt  to  a       MILNE  " 
third  person,  was  held  to  be  a  sufficient  transfer.  In  Sharpless  v. 

v.  Welsh  (a)  the  same.  Strictly  there  can  be  no  legal  assign-  MORETON. 
ment  of  a  chose  in  action.  All  acts  which  devest  the  credi- 
tor's interest  are  therefore  upon  a  footing ;  and  any  thing 
which  deprives  him  of  his  beneficial  title  to  the  debt,  pre- 
vents his  creditor  from  appropriating  it  to  himself  by  attach- 
ment. 

An  assignment  by  commissioners  of  bankrupt  is  equiva- 
lent to  a  voluntary  assignment.  Debts  due  to  the  bankrupt 
have  in  contemplation  of  law  no  locality ;  they  attend  his 
person,  are  subject  to  the  same  law,  are  transferred  by  as- 
signments in  conformity  with  that  law,  follow  its  distribu- 
tion in  the  case  of  an  intestacy,  Pipon  v.  Plpon  (£),  and  in 
the  case  of  testamentary  disposition  will  not  pass  if  there  is 
a  want  of  such  conformity.  This  Court  in  the  case  of  Des- 
esbats  v.  Berquier  (c)  has  solemnly  established  this  doctrine. 
It  is  a  binding  authority,  and  must  carry  the  Court  to  all 
its  legitimate  consequences.  The  debt  due  to  Topham^  must 
then  be  considered  as  within  the  same  English  jurisdiction 
with  himself,  present  at  the  same  domicil,  and  governed  by 
the  same  law.  Why  then  shall  not  a  statutory  transfer  pass 
it?  It  is  not  allowing  extra-territorial  effect  to  the  statute, 
for  the  chattel  on  which  it  operates  is  within  the  territory 
of  the  law  maker.  It  does  not  contravene  the  will  of  the 
bankrupt,  because  as  a  subject  of  the  country,  he  has  assent- 
ed to  the  law,  and  all  proceedings  under  it ;  and  he  brings 
himself  voluntarily  within  its  provisions,  as  a  trader.  It  is 
not  without  consideration,  but  upon  the  best,  the  payment 
of  debts.  It  has  accordingly  been  respected  by  all  nations,  as 
a  sufficient  transfer  to  prevent  a  subsequent  attachment.  By 
England  as  early  the  year  1760,  in  the  case  of  a  cessio  bono- 
rum  in  Holland.  Solomons  v.  Ross  (</),  and  Jollet  v.  De- 
ponthieu  (e).  By  Ireland  in  the  case  of  an  English  assign- 
ment. Neal  v.  Cottingham  (/).  By  France,  in  the  case  of  a 
similar  assignment.  Parish  v.  De  Gravier  (£•),  and  Terras- 
son's  case  (A).  And  the  principle,  as  well  as  this  particular 

(a)  4/>a//.278.        (d)  1  H.  Black.  131.        (,§•)  Coopers  Bank.  Lcit^ 

(b)  Ambl.  25.  («)  Id.  132.  App.  27. 
fr)ljWnn.345.        (/)/'/.  132.                       (ft)  Ib. 


356  CASES  IN  THE  SUPREME  COURT 

1814.        application  of  it,  has  been  sanctioned  in  a  great  variety  of 
jVIILNE       cases  ;  Hunter  v.  Potts  (a),  Sill  v.  Wars-wick  (£),  Smith  v. 
v.  Buchanan  (c),  Waring  v.  Knight  (d);  in  Massachusetts,  Good- 

MORETON.  w'm  v.  Jones  (>),  in  New  Tork,  Burd  v.  Pierpont  (/),  Burd  v. 
Caritat  (£•).  Every  day  our  own  courts  give  it  their  sanction. 
They  allow  foreign  assignees  to  sue,  at  least  in  the  bank- 
rupt's name  for  their  use  ;  and  they  would  unquestionably 
disregard  the  bankrupt's  release  made  at  a  subsequent  day. 
Upon  what  ground  can  this  be,  unless  an  equity  passed  by 
the  commissioners'  assignment?  The  interest  of  all  nations 
requires  that  this  comity  should  be  reciprocally  shewn  ;  and 
it  would  be  with  an  ill  grace  disregarded  here  in  reference 
to  England^  when  reciprocity  has  at  length  come  to  be  the 
only  measure  of  the  respect  we  shew  to  discharges  of  the 
person  obtained  under  foreign  laws.  Boggs  v.  Teackle  (A). 
Policy  should  lead  us  to  adopt  the  rule.  It  is  in  favour  of 
an  equal  distribution  among  creditors,  and  against  particular 
preferences. 

There  is  no  case  against  us  which  ought  to  be  regarded, 
because  in  none  has  the  point  been  argued,  or  the  authorities 
noticed.  Burk  v.  Maclean  (t),  contains  merely  an  opinion  of 
Mr.  Dulany.  Wallace  v.  Patterson  (<£),  cites  no  authorities, 
nor  does  the  argument  notice  any  principle.  In  Harrison  v. 
Sterry  (/),  the  Chief  Justice  says  merely  that  foreign  statutes 
do  not  operate  a  legal  transfer.  If  they  did,  they  would  ope- 
rate by  relation  ;  but  this  does  not  say  that  they  are  not  equi- 
valent to  voluntary  assignments,  which  pass  an  equity. 

Arguments  for  the  defendant  in  error.  There  are  two 
questions  in  the  case.  1.  Whether  the  English  statutes  of 
bankrupt  have  taken-  away  the  right  of  the  defendant  in 
error.  2.  Whether  they  have  rendered  ineffectual  the  reme- 
dy he  has  chosen. 

They  have  not  taken  away  his  right.  Supposing  the  con- 
tract to  have  been  made  in  England,  and  with  a  view  to 
performance  there,  this,would  not  follow.  The  lex  loci  go- 
verns as  to  the  form,  the  proof,  and  the  construction  of  the 
contract,  but  not  as  to  its  discharge.  The  law  that  dis- 
charges a  debt  must  have  jurisdiction  over  the  creditor. 

a)  4  D.  and  E.  182.        (e)  S  Mass.  517.  ft)  1  Ear.  &  M  236. 

b)  1  H.  Black.  665.        (/)  1  Johns.  118.  (fc)  2  /far.  &  M  463. 


(c)l  East  11.  (P-)  2  Johns.  342.  (!)  5  Cran.  259. 

(<0  1  Cook  B.  L.  307.    (A)  5  Sinn.  337. 


OF  PENNSYLVANIA. 


35T 


When  the  question  relates  to  enforcing  the  contract,  it  must 
be  decided  by  the  forum  where  the  suit  is  instituted;  and 
if  there  is  nothing  in  that  law  opposed  to  it,  it  is  of  no  im- 
portance that  a  foreign  law  would  not  enforce  it.  Molman 
v.  Johnson  (a),  Biggs  v.  Laurence  (£),  Ptenoll  v.  White 
(c),  Moland  v.  Fitzjames  (</),  Ruggles  v.  Keeler  (e),  Smith. 
v.  Spinola  (/),  3  Dull.  369,  370.  But  the  contract  was 
made  to  be  performed  in  the  United  States.  It  was  there  only 
that  the  deficiency  or  excess  was  to  be  ascertained,  and 
where  of  consequence  the  defendant  in  error  was  to  become 
a  debtor  or  creditor.  The  law  of  this  country  must  there- 
fore govern. 

The  remedy  has  not  been  rendered  ineffectual.  The 
assignment  by  the  British  commissioners,  in  a  controversy 
between  them  and  a  citizen  of  the  United  States,  is  entitled 
to  no  consideration.  It  transfers  no  right  legal  or  equitable; 
and  if  any  respect  is  shewn  to  it  by  the  comity  of  this  Court, 
it  can  only  be  where  the  case  is  between  the  assignees  and 
the  bankrupt  himself,  or  the  subjects  of  England. 

The  basis  of  the  opposite  argument  is  not  solid.  Though 
personal  property  has  in  general  no  locality,  and  although  in 
respect  to  the  transfer  of  it  by  the  proprietor,  the  law  of  his 
domicil  is  in  general  respected,  yet  for  the  protection  of  its 
own  citizens,  and  to  enforce  the  payment  of  debts  due  by 
foreigners,  every  nation  attributes  to  it  a  locality,  and 
makes  it  submit  to  the  operation  of  local  laws.  The  process 
by  attachment  is  built  upon  no  other  principle ;  and  to  illus- 
trate it  by  a  more  striking  case,  in  the  event  of  an  intestacy 
abroad,  every  nation  requires  an  administration  where  the 
chattels  of  the  intestate  actually  are,  and  then  distributes 
not  according  to  the  foreign  law,  but  its  own.  What  clearer 
proof  can  there  be,  that  to  protect  a  domestic  creditor,  the 
law  attributes  a  locality  to  debts  due  to  a  foreigner. 

To  give  effect  to  the  assignment  is  therefore  to  allow  the 
statute  an  extra-territorial  influence,  in  opposition  to  univer- 
sal practice,  to  the  will  of  the  bankrupt,  to  general  conve- 
nience, and  to  justice. 

The  bankrupt  laws  of  England  are  penal  in  their  nature. 


1814. 


MILNE 
v. 

MoRETON 


(a)  Cotep.  341.  (c)  9  Mass.  84.  (e)  3  Johns.  263. 

(6)  3  D.  &  E.  454.  (d)l£«a.  andPvl\  38.    (/)  I  Johns.  198. 


358 


CASES  IN  THE  SUPREME  COURT 


1814.  and  are  according  to  the  opinions  of  learned  men,  and  the 
MILNE decisions  of  courts,  limited  to  their  own  territory.  2  Kaimes 
v.  Eg.  361.  Huberus  in  3  Dal.  371.  They  do  not,  says  Lord 

MORETON.  Mansfeld  in  Cleves  v.  Mils  (a),  extend  even  to  the  colo- 
nies, but  are  considered  there  as  voluntary  conveyances  by 
the  bankrupt,  and  do  not  affect  the  rights  of  other  credi- 
tors; voluntary,  in  the  sense  of  being  without  consideration. 
Le  Chevalier  v.  Lynch,  (&),  was  the  case  of  a  garnishee,  who 
had  paid  money  in  the  West  Indies  to  a  creditor  resident 
there,  under  an  attachment  issued  against  the  bankrupt's 
effects  subsequent  to  a  commission  in  England,  and  upon 
coming  to  England  he  was  sued  by  the  assignee  :  but  he  was 
held  not  liable.  In  Mawdesly  v.  Parke,  cited  in  1  H.  Black. 
680,  it  was  expressly  held  that  an  assignment  by  the  com- 
missioners did  not  transfer  a  debt  due  in  Rhode  Island. 

And  it  is  most  reasonable  that  it  should  be  so,  because  a 
discharge  in  England,  the  beneficial  part  of  the  system, 
does  not  relieve  the  bankrupt  from  his  foreign  debts,  and 
therefore  that  part  of  the  system  which  is  onerous  to  him, 
should  not  be  enforced.  §>uin  v.  O'-Keeff  (c),  Pedder  \. 
M1- Master  (d},  Smith  v.  Buchanan  (e),  Proctor  v.  Moor  (/), 
Vanraugh  v.  Vanarsdale  (£•),  Smith  v.  Smith  (A).  It  would 
be  most  severe  upon  the  bankrupt,  to  permit  his  assignees 
to  take  all  his  effects  in  the  United  States,  and  to  leave  him 
exposed  to  his  creditors  there. 

The  assignment  by  the  commissioners  is  compulsory.  The 
bankrupt  takes  no  part  in  it.  He  does  not  even  formally 
join  them.  All  the  proceedings  are  in  invitum.  It  might  as 
well  be  said  that  the  robber  suffers  death  voluntarily,  be- 
cause he  voluntarily  commits  the  crime,  and  assents  to  the 
law  of  his  country. 

It  is  not  upon  a  good  consideration  as  to  debts  due 
abroad,  because  it  does  not  discharge  him  from  them. 

The  cases  of  Solomons  v.  JRoss,  and  jfollet  v.  Defonthieu, 
were  in  chancery,  and  do  not  seem  to  have  been  argued. 
The  vicinity  of  Holland  to  England,  probably  rendered  it 
convenient  for  those  countries  to  respect  each  others'  bank- 
rupt laws ;  but  convenience  is  the  other  way  between  Great 


(«)  1  Cook.  B.  Law  303. 

(6)  Doug.  169. 

(c)  2  H.  Slack.  553. 


(</)  8 1),  and  E.  609.- 
(e)  1  East  6. 
(/)  1  Mass.  198. 


(_§•)  3  Caines  154. 
(A)  2  Johns.  235. 


OF  PENNSYLVANIA. 


359 


Britain  and  the  United  States.  Besides,  the  authority  of  those 
cases  is  entirely  done  away  by  Mawdesly  v.  Parks.  The  first 
of  them  was  decided  upon  a  principle  now  universally  given 
up,  that  the  property  passes  by  relation  to  the  act  of  bank- 
ruptcy. 

In  the  United  States  there  are  four  cases  in  point.  1  Kir- 
by's  Reports  313,  in  Connecticut;  M* Lane's  case  (a),  in 
Maryland;  Wallace  v.  Patterson  (li),  in  the  same  state ;  and 
Harrison  v.  Sterry  (c),  in  the  Supreme  Court  of  the  United 
States.  In  the  last  case,  after  distributing  the  fund  first  to 
creditors  who  had  attached  in  the  United  States,  after  the 
bankruptcy  in  England  and  before  the  assignment,  it  was 
afterwards  divided  equally  between  American  and  British 
creditors  without  at  all  regarding  the  assignment. 

All  the  American  authorities  cited  by  the  plaintiff  in 
error,  are  well  reconciled  by  our  position,  that  as  between 
the  bankrupt  and  his  assignees  or  foreign  creditors,  comity 
will  give  effect  to  the  assignment,  and  no  further. 

TILGHMAN  C.  J.  Moreton  the  plaintiff  below,  claims 
under  an  attachment  against  the  effects  of  Topham  a  mer- 
chant residing  in  England.  A  commission  of  bankrupt  had 
issued  against  Topham  in  England,  and  the  commissioners 
had  made  an  assignment  of  his  estate  prior  to  the  issuing  of 
the  plaintiff's  attachment.  The  question  is,  whether  the 
plaintiff  can  hold  the  bankrupt's  effects  againet  the  assignees 
under  the  commission.  The  counsel  for  the  assignees  rest 
their  defence  on  two  points.  First,  that  the  contract  having 
been  made  in  England,  the  case  must  be  decided  by  the  law 
of  England.  Secondly,  that  by  the  assignment  an  equitable 
interest  passed  to  the  assignees,  which  will  be  protected 
against  an  attachment. 

1.  Although  the  transaction  from  which  the  plaintiff's 
claim  arises,  originated  in  England,  yet  the  business  was  to 
be  done  in  America.  The  plaintiff  residing  in  New  Tork,  advan- 
ced money  in  England,  and  Topham  to  whom  the  money  was 
advanced,  made  a  consignment  of  goods  to  the  plaintiff.  The 
goods  were  to  be  sold,  and  the  plaintiff's  advance  being  de- 
ducted from  the  proceeds,  the  surplus  was  to  be  remitted  to 
Topham  in  England.  But  it  turned  out,  that  the  proceeds  fell 

(a)  1  Harris  MM'H.  236.    (&)  2  Harris  &M(H.  463.    (c)  5  Cam.  289. 


1814. 


MILNE 

v. 
MORETON. 


0  CASES  IN  THE  SUPREME  COURT 

1614         short  of  the  money  advanced,  so  that  contrary  to  expectation, 
jrt,LNE        the  plaintiff  remained  the  creditor  at  the  winding  up  of  the 
v.  concern.    Under  these  circumstances,  it  cannot  be  said  thfct 

the  parties  looked  to  the  law  of  England;  and  if  they  did  not, 
there  is  no  pretence  for  having  recourse  to  that  law.  If  a 
contract  is  made  in  one  country  with  a  view  to  its  execution 
in  another,  it  shall  be  governed  by  the  law  of  the  country 
where  it  is  to  be  executed.  Such  was  the  opinion  of  Lord 
Mansfi'ld  in  Robinson  v.  Bland,  2  Burr.  1O79,  in  his  reason- 
jag  in  the  ca&e  of  a  bill  of  exchange  drawn  in  Paris  payable 
in  London  ;  a«d  the  principle  is  correct,  because  it  is  the  in- 
tention of  the  parties  which  should  decide  by  what  law  they 
are  to  be  governed.  Where  this  intention  is  not  expressed, 
it  may  be  reasonably  concluded,  that  they  resort  to  the  law 
of  the  country  where  the  contract  is  to  be  carried  into  ef- 
fect. But  even  if  it  had  not  been  the  intention  to  transact 
the  business  relative  to  the  contract  in  America,  I  do  not 
consider  the  principle  of  the  lex  loci  as  applicable  to  the  case ; 
because  the  dispute  arises  not  on  the  construction  of  the 
contract,  but  on  a  collateral  matter.  In  general  a  contract 
is  said  to  be  expounded  according  to  the  law  of  the 
country  in  which  it  is  made  ;  but  here  is  no  question 
about  the  contract,  the  controversy  is  concerning  property 
of  the  debtor  totally  unconnected  with  the  contract.  In 
many  respects  the  law  of  the  country  -where  the  action  is 
brought,  must  prevail.  It  will  not  be  pretended  that  the  de- 
fendant an  English  merchant,  could  plead  the  British  statute 
of  limitations  in  bar  of  the  plaintiff's  action.  So  if  die  lex 
loci,  gives  particular  privileges  to  certain  classes  of  people, 
they  lose  them  when  they  go  out  of  the  territory  where  the 
privilege  exists.  In  France  a  merchant  is  not  liable  to  impri- 
sonment in  actions  of  debt,  except  in  certain  cases.  This  law 
was  pleaded  here  by  a  French  merchant,  on  a  motion  to  be 
discharged  on  common  bail  in  an  action  on  a  contract  made 
in  France;  but  the  plea  was  overruled.  If  the  law  of  Eng- 
land is  to  govern  the  case  before  us,  then  it  must  govern 
not  only  the  construction  of  the  contract,  but  every  other 
question  which  arises  ia  the  prosecution  of  the  suit,  a  pro- 
position too  extravagant  to  be  contended  for.  We  must  de- 
cide then  according  to  our  own  law. 

2.  The  second  question  is  not  so  easily  answered.  It  has 
never  been  decided  in  this  state  and  is  of  great  importance, 


OF  PENNSYLVANIA. 


both  as  it  respects  our  national  character,  and  the  amount  of 
property  depending  on  it.  The  assignees  of  Topham  stand  " 
upon  this  principle,  "  that  personal  property  has  no  locality, 
"  but  is  transferred  according  to  the  law  of  the  country  in 
"  which  the  owner  is  domiciled."  This  proposition  is  true 
in  general,  but  not  to  its  utmost  extent,  nor  without  several 
exceptions.  In  one  sense  personal  property  has  locality,  that 
is  to  say,  if  tangible,  it  has  a  place  in  which  it  is  situated, 
and  if  invisible,  (consisting  of  debts)  it  may  be  said  to  be 
in  the  place  where  the  debtor  resides  ;  and  of  these  circum- 
stances the  most  liberal  nations  have  taken  advantage,  by 
making  such  property  subject  to  regulations  which  suit  their 
own  convenience.  In  cases  of  intestacy,  the  property  is  dis- 
tributed according  to  the  law  of  the  domicil  of  the  intestate. 
But  yet  so  far  as  concerns  creditors,  it  depends  on  the  law 
of  the  country  where  it  is  situated.  If  an  Englishman  dies, 
and  leaves  property  here,  we  regulate  the  order  in  which 
his  debts  shall  be  paid,  according  to  our  own  law  ;  the  resi- 
due is  distributed  according  to  the  law  of  England,  and 
the  English  adopt  the  same  rule  with  regard  to  foreigners 
leaving  property  in  England.  Every  country  has  the  right  of 
regulating  the  transfer  of  all  personal  property  within  its 
territory,  but  when  no  positive  regulation  exists,  the  owner 
transfers  it  at  his  pleasure.  We  have  no  laws  prohibiting 
foreigners  from  the  free  disposal  of  their  personal  property 
situated  here.  Therefore  if  Topham  had  made  an  assign- 
ment of  his  property  in  the  hands  of  the  .garnishee,  the  case 
would  not  have  admitted  of  a  moment's  speculation.  For 
although  in  strict  law,  a  chose  in  action  is  not  assignable^ 
yet  it  is  in  equity,  and  an  equitable  assignment  made  bona 
fide  and  for  a  valuable  consideration  will  be  protected  against 
an  attachment.  This  assignment  however  was  not  made  by 
Topham,  but  by  certain  commissioners  appointed  by  the  lord 
chancellor,  according  to  the  law  of  England,  which  it  is  con- 
tended is  equivalent  to  an  assignment  by  himself,  because 
every  man  is  supposed  to  consent  to  the  law  of  his  country. 
An  assignment  by  law  has  no  legal  obligation  out  of  the 
territory  of  the  law  maker.  But  by  the  curtesy  of  nations, 
founded  on  principles  of  mutual  convenience,  the  laws  of 
one  country  are  sometimes  regarded  in  another.  The  ex- 
tensive commerce  of  England  has  scattered  the  property  of 
VOL.  VI.  2  Z 


1814. 


MILNE 

v. 

MORETON. 


362 


CASES  IN  THE  SUPREME  COURT 


1814. 


MILNE 
v. 

MORETON. 


her  subjects  all  over  the  globe,  and  brought  much  of  the 
property  of  foreigners  within  her  own  territory.  Of  conse- 
quence, questions  have  often  been  brought  before  her  courts, 
concerning  the  operation  of  her  own  bankrupt  laws  in  fo- 
reign countries,  and  the  effect  of  foreign  bankrupt  laws  on 
property  in  England.  With  respect  to  assignments  under 
the  English  law,  they  never  were  held  to  operate  as  legal 
transfers  of  property  out  of  England,  not  even  in  Scotland, 
Ireland  or  the  colonies  in  America.  Cleve  v.  Mills,  1  Cooke 
303.  Nor  has  it  been  denied  that  an  inhabitant  of  one  of  the 
colonies,  who  has  obtained  judgment  and  execution  against 
the  effects  of  a  bankrupt  under  a  law  of  the  colony,  may 
hold  against  the  assignees  in  England.  Waring  v.  Knight, 
1  Cooke  407.  But  if  an  inhabitant  of  England  attaches  the 
property  of  an  English  bankrupt  in  foreign  parts,  and  thus 
obtains  payment,  he  will  be  compelled  to  refund  the  money 
in  an  action  by  the  assignees  ;  Sill  v.  Worstvick,  1  H.  Black. 
665.,  Phillips  v.  Hunter,  2  H.  Black.  402.,  Hunter  v.  Potts, 
4  T.  Rep.  182 ;  because  residing  in  England  and  bound  by 
the  law  of  his  country,  it  is  against  equity  that  he  should 
defeat  the  object  of  that  law,  which  is  the  placing  of  all  cre- 
ditors on  an  equal  footing.  As  to  assignments  under  foreign 
bankrupt  laws,  it  was  determined  in  the  year  1764  in  Solo- 
mons v.  Ross,  1  H.  Black.  331,  and  Jolletv.  Deponthieu^  1  H. 
Black.  132,  that  the  curators  under  a  cessio  bonorum  in 
Holland,  should  be  preferred  to  English  creditors  who  at- 
tached the  property  of  the  bankrupt  in  London.  No  case  has 
arisen  between  assignees  under  a  commission  in  the  United 
States,  and  English  creditors  claiming  under  an  attachment ; 
but  it  has  been  decided  in  the  case  of  Smith  v.  Buchanan, 
1  East  6,  that  a  discharge  under  a  commission  of  bankrupt 
in  the  United  States,  was  no  bar  to  the  action  of  an  English 
creditor  for  a  debt  contracted  in  England,  and  in  Pedder  v. 
M* Master,  8  T.  Rep.  609,  the  Court  of  King's  Bench  refus- 
ed to  enter  an  exoneretur  on  the  bail  piece,  although  the 
defendant  had  been  discharged  under  the  bankrupt  law  of 
Hamburg,  where  he  resided  when  the  debt  was  contracted. 
It  is  true,  that  the  English  judges  have  often  said  in  general 
terms,  that  assignees  under  foreign  commissions  were  per- 
mitted to  bring  actions  in  England  ;  and  lord  Loughborough 
in  particular  has  contended  for  this  principle  in  strong  terms. 


OF  PENNSYLVANIA. 


and  declared  that  although  foreign  nations  were  at  liberty 
to  pay  no  more  regard  than  they  thought  proper,  to  assign-" 
xnents  under  commissions  in  England,  yet  to  disregard  them, 
would  show  a  want  of  good  policy  and  civilization.  Sill  v . 
Worswick,  1  H»  Black.  693.  Yet  it  must  be  confessed,  that 
between  countries  situated  at  a  great  distance  from  each 
other,  the  subject  is  attended  with  considerable  difficulties. 
This  is  felt  by  the  English  courts  as  well  as  our  own ;  for 
in  neither  is  a  discharge  under  a  foreign  commission,  con- 
sidered as  a  bar  to  an  action,  and  yet  it  would  seem  that 
in  order  to  act  with  consistency,  complete  effect  should  be 
given  to  the  foreign  commission,  which  is  not  done  while 
the  bankrupt  remains  liable  to  an  action.  It  was  at  one  time 
supposed,  that  this  complete  effect  should  be  given  ;  for  in 
Pedder  v.  M' Master,  the  opinion  of  lord  Mansfield  is  said 
to  have  been  given  in  the  case  of  Ballantine  v.  Golding,  as 
follows  :  "  It  is  a  general  principle  that  where  there  is  a  dis- 
"  charge  by  the  law  of  one  country,  it  will  be  a  discharge  in 
"  another."  But  when  the  principle  came  to  be  reduced  to 
practice,  it  was  found  to  be  too  extensive,  and  has  been  re- 
jected in  latter  times,  as  appears  by  the  cases  which  have 
been  cited.  In  this  state  we  have  permitted  English  as- 
signees to  bring  actions  in  the  name  of  the  bankrupt  for 
their  own  use,  and  we  have  held,  that  between  British  sub- 
jects, a  discharge  under  an  English  commission  is  a  bar  to 
an  action  here.  Harris  &  Price  v.  Mandeville,  September 
1796.  But  this  is  the  first  case  in  which  there  has  been  a 
collision  between  the  English  assignees,  and  our  own  citi- 
zens claiming  under  an  attachment.  Neither  do  I  know 
that  an  action  of  the  kind  has  been  directly  decided  in  any 
state  northward  of  Pennsylvania,  although  in  the  Supreme 
Courts  of  Massachusetts  and  New  York  it  has  been  said  in 
general  terms,  that  an  assignment  by  commissioners  in  Eng- 
land is  equivalent  to  a  voluntary  assignment  by  the  bankrupt 
himself.  In  Maryland  the  law  has  been  long  settled.  M1- Lane's 
Case,  1  Har.  &  M'-Hen.  236.,  Wallace  &?c.  v.  Patterson, 
2  Har.  &?  MlHen.  463.  The  assignment  of  the  commis- 
sioners has  no  validity  there  against  an  attachment.  If  we 
are  to  give  effect  to  an  English  commission  in  preference 
to  an  attaching  creditor,  I  do  not  perceive  on  what  ground 
we  can  refuse  to  adopt  the  principle  of  relation  by  which 


1Q14. 


MILNE 
v. 

MORETON. 


364 


CASES  IN  THE  SUPREME  COURT 


1814. 


MILNE 

v. 
MOUETOX. 


the  property  is  divested  from  the  bankrupt  and  vested  in 
the  commissioners  from  the  time  of  the  commission  of  the 
act  of  bankruptcy.  And  yet  this  would  be  attended  with 
inconvenience  too  great  to  be  endured.  I  am  forcibly  struck 
too  with  the  injustice  of  permitting  foreign  assignees  to  take 
the  bankrupt's  property  from  this  country,  leaving  the 
bankrupt  exposed  to  actions  of  his  creditors  here.  This  is 
not  giving  effect  to  the  whole  system,  but  maiming  and  defor- 
ming it ;  for  while  the  bankrupt  is  compelled  on  pain  of  death, 
to  make  a  fair  surrender  of  all  his  property,  it  is  intended 
to  compensate  him  by  a  complete  discharge  from  his  debts. 
As  it  seems  impossible  therefore  consistently  with  for- 
mer decisions,  to  adopt  the  proceedings  under  the  English 
commission  according  to  the  spirit  and  intent  of  their  law, 
and  it  appears  that  the  English  courts  find  the  same  diffi- 
culty in  giving  full  effect  to  commissions  of  bankrupt  in  the 
United  States,  it  is  at  least  questionable,  whether  consulting 
the  real  convenience  of  both  countries,  it  would  not  be  best, 
to  leave  creditors  to  their  remedy  by  attachment,  permitting 
the  assignees  in  other  respects  to  have  the  benefit  of  the 
commission.  But  whatever  might  be  my  own  opinion  of  the 
policy  which  an  enlightened  nation  should  pursue,  I  should 
find  no  small  difficulty  in  deciding  this  case,  were  it  not  for 
the  authority  of  the  Supreme  Court  of  the  United  States 
bearing  directly  upon  the  point.  In  the  case  of  Harrison  v. 
Sterry  and  others,  5  Crunch  289,  there  were  conflicting 
claims  between  1st,  the  assignees  under  an  English  com- 
mission ;  2d,  creditors  in  the  United  States  who  had  laid 
attachments  subsequent  to  the  act  of  bankruptcy  in  England, 
but  prior  to  the  assignment  by  the  commissioners  ;  and  3d, 
other  creditors  who  had  issued  no  attachment.  The  attach- 
ment creditors  were  preferred  to  the  other  two  classes,  and 
the  residue  which  remained  after  satisfying  them,  was  dis- 
tributed so  as  to  put  all  the  creditors  as  nearly  as  possible 
on  an  equal  footing,  without  paying  any  particular  regard 
to  assignees  under  the  English  commission.  I  think  it  safest 
to  rest  on  this  authority ;  and  am  therefore  of  opinion,  that 
the  plaintiff  is  entitled  to  hold  under  his  attachment  against 
the  claim  of  the  English  assignees.  Of  consequence  the 
judgment  of  the  District  Court  should  be  affirmed. 


OF  PENNSYLVANIA. 


365 


YEATES  J.  I  feel  little  difficulty  in  declaring  my  senti-_ 
ments,  that  the  present  question  is  not  to  be  determined  by 
the  laws  of  Great  Britain,  excluding  other  systems  of  juris- 
prudence, and  particularly  our  own  political  institutions. 
The  lex  loci  forms  a  rule  for  the  exposition  of  contracts, 
and  in  many  cases  governs  exclusively ;  but  not  when  made 
in  one  country  to  be  carried  into  execution  in  another 
country. 

Here  the  original  contract  was  made  in  England.  Top- 
ham  a  British  subject  resident  in  England,  transmitted  to 
the  plaintiff  Moreton  an  American  citizen,  resident  at  New 
Tork,  a  quantity  of  goods,  through  Moretorfs  agent  in  Liver- 
'  pool,  to  be  sold  on  commission,  and  received  from  the  agent 
an  advance  in  money  on  account.  It  turned  out  in  the  event, 
that  the  sum  so  advanced  exceeded  the  net  proceeds,  on  the 
sale  of  the  goods,  and  the  foreign  attachment  issued  for  the 
recovery  of  the  balance.  Now  it  is  perfectly  clear,  that  until 
the  sales  of  the  merchandize  were  finished  in  New  Tori, 
and  the  concern  there  wound  up,  it  could  not  be  ascertain- 
ed which  of  the  parties  was  indebted  to  the  other,  nor  what 
would  be  the  precise  balance  between  them.  Although  the 
transaction  therefore  commenced  in  Liverpool,  it  necessarily 
terminated  in  New  Tori,  and  in  this  latter  place  the  debt 
arose.  This  in  my  idea  removes  every  consideration  as  to 
Liverpool's  being  the  place,  whose  laws  must  guide  our 
decision. 

But  another  question  presents  itself,  more  difficult  of 
solution,  Shall  the  mere  prior  assignment  of  the  effects  of  a 
bankrupt,  in  Great  Britain,  by  the  commissioners  there,  pre- 
vail against  the  attachment  of  an  American  citizen,  laid 
upon  the  effects  of  the  bankrupt  in  the  United  States  ¥  It  is 
highly  important,  inasmuch  as  it  involves  our  national  cha- 
racter, and  deeply  interests  every  American  trader.  I  have 
therefore  given  the  subject  every  consideration  in  my 
power;  and  if  the  opinion  I  have  formed  shall  be  found  to 
be  erroneous,  I  cannot  shelter  myself  under  the  pretext  of 
inattention  to  the  subject  of  inquiry. 

The  municipal  laws  of  all  kingdoms  and  countries  have 
no  binding  force  beyond  their  respective  limits.  Such  regu- 
lations are  purely  territorial  in  their  effect.  It  is  not  pre- 
tended that  the  English  statutes  of  bankruptcy  have  a 


1814. 


MILNE 

v. 
MORETON. 


366 


CASES  IN  THE  SUPREME  COURT 


1814. 


MILNE 

v. 
MORETON. 


strictly  legal  operation  in  the  United  States.  The  claim  of 
preference  in  this  instance  in  favour  of  the  assignees,  IB 
grounded  upon  what  is  called  the  comity  of  nations.  A  bank- 
rupt in  the  eye  of  the  law,  from  whatever  source  his  misfor- 
tunes may  have  arisen,  was  anciently  supposed  to  be  criminal, 
and  the  system  of  bankruptcy  has  always  been  considered 
of  a  penal  and  confiscatory  nature.  The  English  books  treat 
their  statutes  of  bankruptcy  as  merely  local,  and  confined 
in  their  operation  to  that  particular  portion  of  the  kingdom, 
called  England^  not  extending  to  their  dominions  abroad, 
nor  even  to  Scotland  in  their  full  vigour.  The  assignment 
of  the  property  of  a  bankrupt  is  a  statutable  conveyance  for 
the  benefit  of  his  creditors  generally,  in  proportion  to  their 
debts,  and  is  co-extensive  with  the  power  of  the  legislature. 
In  two  late  cases  in  England,  Hunter  et  al.  v.  PottSj 
4  T.  £.  182.,  and  Sill  et  al.  v.  Worsivick,  1  H.  Bl.  665,  it 
was  decided,  that  if  after  the  assignment  of  a  bankrupt's 
estate,  a  British  creditor  knowing  it,  and  residing  in  Eng- 
land, should  attach  the  money  of  the  bankrupt  abroad,  the 
assignees  may  recover  it  in  an  action  for  money  received  to 
their  use.  Another  determination  of  the  like  nature  took 
place  in  the  chancery  of  Ireland  previously,  between  Neale 
et  al.  assignees  v.  Cottingham  and  Houghton,  1  H.  Bl.  132, 
note.  The  grounds  of  these  decisions  were,  that  the  parties 
who  had  laid  the  attachment  were  British  subjects,  and 
during  the  progress  of  the  business  lived  in  England,  and 
of  course  were  bound  by  the  laws  of  that  kingdom,  to 
which  they  must  be  presumed  to  have  given  their  assent. 
Such  persons  therefore  were  not  permitted  to  avail  them- 
selves of  proceedings,  which  enabled  them  to  counteract  a 
general  system  of  municipal  jurisprudence,  calculated  for 
the  common  benefit  of  all  the  creditors.  This  Court  adopt- 
ed a  similar  principle  in  the  cases  of  Harris  and  Price  v. 
Mandeville,  and  M'-Guire  v.  Mandeville,  in  September  Term 
\  796,  when  they  determined  that  a  discharge  by  the  bank- 
rupt laws  of  England  should  protect  the  person  of  the  bank- 
rupt from  bail  in  this  state,  where  the  plaintiffs  were  British 
subjects  ;  and  where  the  bankrupt  had  been  held  to  special 
bail,  an  exoneretur  was  directed  to  be  entered.  But  I  am 
not  aware  of  any  instance  in  the  United  States,  wherein 
common  bail  has  been  odered  in  a  suit  instituted  by  an 


OF  PENNSYLVANIA.  367 

American  citizen,  against  one  who  has  been  declared  a  1814. 
bankrupt,  and  obtained  his  discharge  under  the  laws  of  a  MILNE 
foreign  country.  It  has  been  adjudged  by  this  Court,  that  T». 

where  one  has  been  arrested,  who  had  been  discharged  MORETON. 
under  an  insolvent  law  of  our  sister  state  of  New  Tork^ 
whose  Courts  do  not  respect  discharges  under  our  bankrupt 
or  insolvent  laws,  he  shall  not  be  discharged  on  common 
bail.  Fisher  v.  Hyde,  September  Term  1801.  The  same  prin- 
ciple has  been  pursued,  where  a  discharge  had  been  obtain- 
ed in  the  district  of  Columbia,  under  the  insolvent  act  of 
congress.  Walsh  v.  Nourse,  5  Binney  381.  But  where  a 
sister  state  acknowledges  the  effect  of  a  discharge  under 
our  laws,  no  bail  is  required  by  us  on  the  discharge  of  a  de- 
fendant by  the  laws  of  such  state.  Hilliardv.  Greenleaf, 
5  Binney  336,  note,  Boggs  et  al.  v.  Teackle,  Ib.  332.  And 
in  England,  B.  R.  will  not  order  an  exoneretur  to  be  enter- 
ed on  the  bail  piece,  upon  the  ground  that  the  debt  was 
contracted  while  the  defendant  was  resident  in  a  foreign 
country,  and  before  he  became  a  bankrupt  by  the  laws  of 
that  country,  though  he  may  have  obtained  his  certificate 
there.  The  Court  distinguished  it  from  the  case  of  Lallan- 
tine  v.  Golding,  where  it  did  not  appear  that  both  parties 
resided  in  England^  whereas  in  the  case  then  before  them, 
the  plaintiff  was  resident  in  England.  Pedder  v.  M1- Master, 
8  Term  Rep.  610.  In  Smith  et  al.  v.  Buchanan  et  al., 
1  East  11,  it  was  resolved,  that  a  discharge  under  a  com- 
mission of  bankrupt  is  no  bar  to  an  action  for  a  debt  arising 
in  England  against  the  bankrupt,  by  a  creditor  an  English 
subject,  although  the  courts  there  so  far  give  effect  to  foreign 
laws  of  bankruptcy,  as  that  assignees  of  bankrupts  deriving 
titles  under  foreign  ordinances,  are  permitted  to  sue  in  Eng- 
land for  debts  due  to  the  bankrupt's  estates ;  because  the 
right  to  personal  property  must  be  governed  by  the  laws  of 
that  country  where  the  owner  is  domiciled.  And  in  Potter 
v.  Browne,  5  East  131,  lord  Ellenborough  says,  "  we 
"  always  import  together  with  their  persons,  the  existing 
"  relations  of  foreigners  as  between  themselves,  according 
**  to  the  laws  of  their  respective  countries ;  except  indeed 
"  -where  those  laws  clash  with  the  rights  of  our  own  subjects 
*'  in  England,  and  one  or  other  of  the  laws  must  necessarily 
"give  way,  in  which  case  our  own  is  entitled  to  the  prefer 
"ence." 


368 


CASES  IN  THE  SUPREME  COURT 


1814. 


MILNE 
v. 

MORETON. 


In  Sill  et  al.  v.  Worswick,  already  cited,  Lord  Loughbo- 
'  rough  in  1  H.  Bla.  693,  says,  "  It  by  no  means  follows  that  a 
"  commission  of  bankrupt  has  an  operation  in  another  coun- 
"  try  against  the  law  of  that  country.  I  do  not  wish  to  have 
"  it  understood,  that  it  follows  as  a  consequence  from  the 
"  opinion  I  am  now  giving,  (I  rather  think  that  the  contrary 
*'  would  be  the  consequence  of  the  reasoning  I  am  now 
"  using),  that  a  creditor  in  that  country,  not  subject  to  the 
"  bankrupt  laws,  nor  affected  by  them,  obtaining  payment  of 
u  his  debt  and  afterwards  coming  over  to  this  country, 
u  would  be  liable  to  refund  that  debt.  If  he  had  recovered 
"  it  in  an  adverse  suit  with  the  assignees,  he  would  clearly 
"  not  be  liable.  But  if  the  law  of  that  country  preferred  him 
"  to  the  assignees,  though  I  must  presume  that  determina- 
"  tion  wrong,  yet  I  do  not  think,  that  my  holding  a  contrary 
"  opinion  would  revoke  the  determination  of  that  country, 
"  however  I  might  disapprove  of  the  principle  on  which  the 
"  law  so  decided." 

The  case  now  before  us,  presents  to  our  view,  these  im- 
portant prominent  features.  The  defendant  in  error  was  an 
American  citizen,  resident  in  New  Tark,  -where  and  -when 
this  debt  arose  in  my  idea.  The  parties  now  stand  on  their 
several  legal  rights ;  and  the  question  therefore  is  narrowed 
down  to  one  point,  shall  the  assignment  of  the  commission- 
ers in  a  foreign  country  prevail  in  such  a  case,  against  the 
attaching  creditor  here  ? 

Much  reliance  has  been  placed  by  the  counsel  of  the 
plaintiff  in  error  on  Salomons  v.Ross,  1  H.  Bla.  131,  note  a, 
and  Jollet  and  Reitveld  v.  De  Ponthieu  and  Baril,  Ib.  1 32, 
wherein  the  cessio  honor um  of  a  bankrupt  in  Holland,  was 
preferred  to  a  subsequent  attachment  laid  on  the  bankrupt's 
effects  in  England*  The  first  case  carries  the  doctrine  to  an 
unwarrantable  extent,  by  applying  the  relation  to  the  time 
of  the  Deneufville^s  stopping  payment,  and  not  to  the  time  of 
the  chamber  of  desolate  estates  taking  cognizance  thereof, 
which  relation  is  not  justified  by  the  laws  of  Holland,  where 
the  bankrupt's  effects  vest  in  the  curators,  from  the  time  of 
their  appointment.  1  H.  Bla.  132,  note,  Cooke's  Bank.  Law 
507.  Although  these  cases  be  considered  as  law,  I  think 
they  may  be  distinguished  from  that  before  us.  The  cessio 
bonorum  in  Holland f  follows  the  Roman  law,  and  is  made 


OF  PENNSYLVANIA. 


369 


by  the  bankrupt  himself.  Beawes*  Lex  Mercat.  608,  612,4*7* 
edit.,  Instructions  of  the  states  of  Holland  and  West  Prize 
to  the  commissioners  of  desolated  estates.  Art.  38.,  2  Black. 
473.  But  the  assignment  was  made  by  the  commissioners 
under  the  provisions  of  municipal  regulations  merely  terri- 
torial. It  is  one  thing  to  assert,  that  assignees  of  bankrupts 
under  foreign  institutions,  should  be  allowed  by  the  courtesy 
of  nations  to  support  suits,  as  the  representatives  of  such 
bankrupts,  for  debts  due  to  them ;  and  it  is  another  thing  to 
give  efficacy  to  those  institutions,  to  cut  out  attaching  credi- 
tors, although  posterior  in  point  of  time,  who  have  com- 
menced their  proceedings  under  the  known  laws  of  the 
government  to  which  they  owed  allegiance,  and  from  whom 
they  were  entitled  to  protection. 

It  was  remarked  during  the  argument,  that  no  good  rea- 
son can  be  assigned,  why  an  assignment  by  the  bankrupt 
himself  should  prevail,  and  not  the  present  one  as  made  by 
the  commissioners,  which  ought  to  be  considered  as  equiva- 
lent thereto,  and  be  deemed  a  voluntary  conveyance  made 
by  the  bankrupt  himself,  for  a  valuable  consideration. 
The  difference  appears  to  me  sufficiently  obvious.  Effect  is 
given  to  the  fair  assignment  of  the  bankrupt  himself,  be- 
cause it  is  the  spontaneous  act  of  the  party  having  the  full 
dominion  over  the  property,  transferring  an  equitable  if  not 
a  legal  title  thereto,  after  which  his  interest  therein  neces- 
sarily ceases,  and  is  no  longer  subject  to  an  attachment.  It 
is  wholly  superfluous  to  cite  Justinian,  lib.  2.  tit.  1.  s.  40,  to 
shew  that  nothing  is  more  conformable  to  natural  equity, 
than  to  confirm  the  will  of  him,  who  is  desirous  to  trans- 
fer his  property  to  another.  But  effect  cannot  be  given  to 
the  assignment  by  the  commissioners,  unless  we  adopt  the 
British  statutes  of  bankruptcy,  as  laws  binding  on  ourselves, 
although  they  were  not  considered  to  affect  us,  when  we  were 
the  colonies  of  Great  Britain;  and  this  too,  when  their  ope- 
ration would  manifestly  interfere  with  the  interests  of  our 
own  citizens.  It  may  also  be  asked  in  return,  why  shall  this 
statutory  assignment  have  the  efficacy  of  vesting  in  the  as- 
signees the  effects  of  the  bankrupt,  however  distant,  and 
thus  protect  them  against  foreign  creditors  who  have  nei- 
ther received  nor  even  claimed  dividends  under  the  com- 
and  yet  a  regular  certificate  of  full  conformity  to 


1814. 


MILNE 

v. 

MoiiETON. 


mission, 


VOL.  VI. 


3  A 


370 


CASES  IN  THE  SUPREME  COURT 


1814. 


MILNE 
v. 

MoRETON. 


the  statutes  shall  not  protect  the  person  of  such  bankrupt 
"from  arrests  in  our  courts,  at  the  suits  of  such  creditors  ?  It 
was  not  pretended  on  the  first  argument,  that  the  doctrine  of 
relation  to  the  act  of  bankruptcy  committed,  which  is  ex- 
pressly enacted  by  the  British  statutes,  can  possibly  hold 
here,  operating  on  goods  or  effects  within  the  United  States ; 
and  yet  if  those  statutes  on  the  ground  of  want  of  lo- 
cality of  such  goods  or  effects,  are  to  be  operative,  they 
should  be  extended  in  their  full  force,  without  limitation  to 
their  effect.  The  attachment  at  the  suit  of  an  American  citi- 
zen brings  in  the  foreign  bankrupt ;  but  if  the  latter  enters 
special  bail,  he  cannot  plead  his  discharge  in  bar  of  the  de- 
mand. Shall  we  recognize  the  act  of  the  commissioners  in 
Europe,  as  effectual  to  transfer  a  debt  incurred  in  the  United 
States,  and  thereby  deprive  the  creditor  of  all  hopes  of 
enforcing  payment  of  his  demand,  in  our  own  tribunals  ? 

That  anxiety  has  been  shewn  by  British  judges  to  extend 
the  operation  of  the  British  statutes  of  bankruptcy  beyond 
the  kingdom  of  England,  and  particularly  by  Lord  Loughbo- 
rough  in  Sill  et  al.  v.  Worswick,  1  H.  Black.  690,  I  will  not 
deny.  The  general  tendency  of  the  cases  is,  that  British  sub- 
jects although  resident  abroad  are  bound  by  the  laws  of 
their  own  country;  and  I  have  no  objection  to  the  doctrine, 
confined  within  those  limits.  The  two  cases  on  which  in 
point  of  authority  the  plaintiff's  strength  lies,  are  Solomons 
v.  Ross,  and  Jollet  &  Reitveld  v.  Deponthieu  &?  Baril,  be- 
fore cited.  On  the  most  diligent  search,  I  can  find  no  other 
adjudications  which  go  to  the  same  extent,  as  to  the  effect 
of  foreign  ordinances ;  and  the  principle  of  those  cases  seems 
impugned  by  other  decisions. 

In  Scotland,  it  is  observed  by  Lord  Kaimes  in  his  Prw* 
ciples  of  Equity,  p.  363,  2d  edit.,  that  the  statutory  trans- 
ference of  property,  even  from  the  bankrupt  to  the  commis- 
sioners, cannot  convey  any  effects  in  that  kingdom,  although 
the  English  statutes  are  not  there  totally  disregarded.  In 
Cleve  v.  Mills,  1  Cook's  Bank.  Laws  303.  4>th  edit.,  Lord 
Mansfield  said  that  the  statutes  of  bankrupt  did  not  extend 
to  the  colonies,  or  any  of  the  king's  dominions  out  of  En- 
gland; the  assignments  under  such  commissions  took  place 
between  the  assignee  and  the  bankrupt,  but  did  not  affect 
the  rights  of  any  other  creditors*  This  was  settled  in  many 


OP  PENNSYLVANIA.  571 

cases,  and  particularly  in  Wilson's  bankruptcy,  wherein  1814. 
Lord  Hardwicke  declared,  that  the  creditors  had  a  right  MILNE 
to  affect  the  estate  in  Scotland,  and  get  the  advantage  of  the 
general  creditors,  notwithstanding  the  commission  in  Eng- 
land, although  he  would  not  permit  them  to  come  in  under 
the  commission  till  the  other  creditors  were  made  even  with 
them.  Wilson's  case  is  also  mentioned  with  approbation  in 
Waring  v.  Knight,  Ib.  307.,  and  in  Le  Chevalier  v.  Lynch, 
Doug.  161,  (170)  wherein  it  was  adjudged,  that  money 
owing  out  of  England  to  a  bankrupt,  might  be  attached  by 
the  law  of  the  place  after  the  bankruptcy,  for  a  debt  due 
before  the  bankruptcy. 

In  Hunter  v.  Potts,  4  T.  R.  190,  the  defendant's  counsel 
puts  the  very  case  now  before  us  as  not  admitting  of  doubt ; 
and  the  Court  do  not  appear  to  deny  the  correctness  of  his 
remarks.  u  If,"  says  he,  "  a  subject  of  Rhode  Island  had 
"  been  a  creditor  of  the  bankrupt,  it  is  not  to  be  supposed 
"  that  the  courts  of  law  would  have  turned  him  round  to 
u  seek  his  remedy  under  the  commission  in  England,  if 
"  even  after  the  commission  here  issued,  he  had  attached 
"  the  property  of  the  bankrupt  there." 

In  Mawdesley  v.  Park  &  Beckruith,  assignees  of  Campbell 
fc?  Hayes,  cited  by  Sergeant  Hill,  arguendo,  in  Sill  et  al. 
v.  Worswick,  before  mentioned  and  stated  at  large  in 
1  H.  Black.  680,  it  was  held  by  the  lords  commissioners 
Smythe  and  Bathurst  at  Lincoln's  Inn  Hall,  December  13th 
1 779,  that  the  assignment  of  the  commissioners  did  not 
divest  the  property  out  of  the  bankrupt,  as  the  debt  was 
due  in  Rhode  Island,  but  only  gave  the  assignees  a  right  to 
sue  for  it,  who  having  commenced  a  suit  first,  and  recovered 
judgment  there,  had  gained  a  priority  over  the  defendants  ; 
and  this  although  the  case  of  Solomons  v.  Ross,  and  Jollet 
et  al.  v.  Deponthieu  et  al.,  are  admitted  to  have  been  decided 
differently. 

And  in  Smith  et  al.  v.  Buchanan  et  al.,  1  East  11,  before 
cited,  lord  Kenyan,  after  stating  that  assignees  of  bank- 
rupts, deriving  titles  under  foreign  ordinances,  are  permitted 
to  sue  in  England  for  debts  due  to  the  bankrupt's  estate, 
mentions  the  opinion  of  lord  Talbot,  that  though  the  com- 
mission of  bankrupt  issued  in  England,  attached  on  the 
bankrupt's  effects  in  the  plantations,  yet  his  certificate  would 


CASES  IN  THE  SUPREME  COURT 
1814.        not  protect   him  from  being  sued  there  for  a   debt  arising 


MILNE       therein. 

v.  In  Bush  et  al.  v.  M'Clain,  1  Harr.  &  M'-Hen.  236,  the 

MOHETOS.  opinion  of  Daniel  Dulany  Esq.  is  given,  wherein  he  distin- 
guishes between  plaintiffs  resident  in  Great  Britain^  taking 
out  attachments  against  the  effects  of  bankrupts  in  Maryland, 
and  country  creditors  pursuing  the  same  measure  ;  and  the 
Court  acted  on  that  distinction. 

And  in  Wallace  et  al.  v.  Patterson,  2  Harr.  &  M'-Hen. 
463,  where  three  persons  residing  in  England  became  bank- 
rupts, and  had  effects  in  Maryland,  it  was  adjudged,  that 
an  attachment  would  lie  by  a  citizen  of  Maryland  against 
one  third  part  of  the  effects,  to  satisfy  a  debt  due  to  him  by 
one  of  the  partners,  and  contracted  in  England. 

I  now  proceed  to  the  case  of  Harrison  v.  Sterry  et  a/., 
adjudged  in  the  Supreme  Court  of  the  United  States  in 
March  18O9,  upon  an  appeal  from  a  decree  of  the  Circuit 
Court  for  the  district  of  South  Carolina,  upon  a  bill  in  equity 
by  Harrison  for  relief.  The  case  in  the  Circuit  court  is  re- 
ported in  Bee's  Admiralty  Decisions  244,  and  on  the  appeal, 
in  5  Cranch  289.  Six  different  classes  of  creditors  claimed 
the  effects  in  question  :  1st  Harrison  the  complainant,  under 
a  deed  from  Robert  Bird  in  his  own  right  and  as  attorney 
of  Henry  Mertens  Bird  and  Benjamin  Savage  his  co-part- 
ners, dated  3d  December  1802,  and  on  a  similar  instrument 
,df  writing  without  seal,  signed  by  Robert  Bird  in  behalf  of 
the  English  and  American  firm,  dated  31st  January  1803. 
These  were  considered  as  fraudulent  acts  on  the  bankrupt 
laws,  being  made  in  contemplation  of  bankruptcy,  and 
consequently  void.  2d.  The  United  States,  who  were  de- 
clared entitled  to  priority  under  the  act  of  congress  of 
.3d  March  1797,  sec.  5.  3d.  The  American:  and  4th.  Bri- 
tish creditors,  who  had  attached  the  effects  of  the  part- 
nership in  South  Carolina  on  the  2d,  15th,  16th  and  23d 
days  of  April  1803.  Robert  Bird  alone  had  become  a  bank- 
rupt under  the  laws  of  the  United  States,  and  his  interest  of 
one  third  in  the  funds  of  the  company,  was  unaffected  by  the 
attaching  creditors,  but  passed  to  his  assignees,  subject  to 
the  claim  of  his  co-partners  upon  a  settlement  of  accounts. 
The  lien  of  the  attaching  creditors  upon  this  one  third  was 
removed  by  the  bankruptlaw  of  the  United  States*  5th.  Sterry 


OF  PENNSYLVANIA. 


373 


and  others,  assignees  of  Henry  Mertens  Bird  and  Benjamin 
Savage,  under  a  British  commission  of  bankruptcy.  The 
bankruptcy  of  Bird,  Savage  and  Bird  in  London  was  de- 
clared on  the  12th  of  June  1803,  and  a  commission  issued. 
On  the  6th  of  February  preceding  they  had  stopped  pay- 
ment. 6th.  Aspimvall  and  others  assignees  of  Robert  Bird 
claimed  under  an  American  commission  of  bankruptcy.  The 
house  under  the  firm  of  Robert  Bird  and  Co.  stopped  pay- 
ment at  New  Tork  on  the  fifth  of  December  1803.  Thomas 
Parker,  who  by  consent  of  the  creditors,  had  been  appoint- 
ed an  agent  for  all  the  parties  concerned,  to  collect  and 
receive  the  debts  due  to  Birdy  Savage  and  Bird,  was  also 
made  a  party  in  the  appeal. 

In  5  Cranch  302,  Marshall,  Chief  Justice,  thus  expresses 
the  opinion  of  the  whole  Court,  "  as  the  bankrupt  law  of  a 
44  foreign  country  is  incapable  of  operating  a  legal  transfer 
"  of  property  in  the  United  States,  the  remaining  two  thirds 
44  of  the  fund  are  liable  to  the  attaching  creditors,  according 
44  to  the  legal  preference  obtained  by  their  attachments." 

It  has  been  contended  by  the  counsel  for  the  plaintiff  in 
error,  that  the  word  legal,  used  in  the  preceding  sentence, 
is  contra-distinguished  from  equitable,  and  must  be  under- 
stood in  that  sense.  This  does  not  appear  to  me  correct, 
although  I  have  had  frequent  occasion  to  lament  the  imper- 
fection of  human  language,  used  by  persons  of  the  most 
discriminating  minds,  and  habituated  to  accuracy  of  speech. 
It  would  seem  wholly  unimportant  to  distinguish  between 
legal  and  equitable  effects,  upon  an  appeal  from  a  decree  in 
equity  on  those  effects  in  the  particular  case.  I  know  of  no 
equity  arising  from  a  transfer  under  a  foreign  law,  which 
does  not  arise  proprio  vigore.  It  is  agreed  that  the  expres- 
sions, however  general,  are  to  be  referred  to  the  circum- 
stances of  that  case.  I  take  the  plain  meaning  of  the  words 
uf  the  Chief  Justice  to  be,  that  a  foreign  law  cannot  transfer 
property  in  the  United  States,  and  this  I  think,  will  most 
clearly  appear  from  the  conclusion  of  the  decree.  "  With 
4«  respect  to  any  surplus  which  may  remain  of  the  two 
41  thirds,  after  satisfying  the  United  States  and  the  attach- 
"  ing  creditors,  it  ought  to  be  equally  divided  among  all 
"the  creditors,  so  as  to  place  them  on  an  equal  footing 


1814. 


MILNE 


MORETON. 


374 


CASES  IN  THE  SUPREME  COURT 


1814. 


MILNE 

v. 
MORETON. 


"  with  each  ether.  The  dividends  paid  by  the  British 
' u  assignees,  and  those  made  by  the  American  assignees 
"  being  taken  into  consideration,  this  residuum  is  so  to  be 
"  divided  between  them,  as  to  produce  equality  between  the 
"  respective  creditors." 

It  is  true,  the  attachments  of  the  creditors  were  laid  on 
the  effects  at  Charlestown,  previously  to  the  issuing  of  the 
English  commission  against  Bird,  Savage  and  Bird,  but 
that  house  stopped  payment  in  London  on  the  5th  of  Feb- 
ruary 1803.  How  comes  it  then,  that  this  commission  did 
not  effect  an  equitable  transfer  of  the  effects  of  the  firm  in 
the  first  instance,  after  payment  of  the  debt  due  to  the 
United  States,  by  relation  to  the  act  of  bankruptcy  in  Lon- 
don, according  to  the  doctrine  asserted  by  the  concluding 
counsel  of  the  plaintiff  in  error  ?  Or  if  the  doctrine  of  rela- 
tion is  not  contended  for,  according  to  the  argument  of  the 
counsel  who  preceded  him,  how  does  it  happen,  that  after 
satisfying  the  United  States  and  the  attaching  creditors,  the 
residue  was  not  ordered  by  the  Court  to  be  paid  over  to  the 
British  assignees,  if  the  effects  were  equitably  transferred  by 
the  British  commission  upon  the  principle  of  comity  ?  Why 
are  all  the  creditors  put  upon  an  equal  footing  ?  I  know  of 
no  satisfactory  answers  which  can  be  given  to  these  ques- 
tions, unless  on  the  concession,  that  the  bankrupt  law  of  a 
foreign  country  is  incapable  of  operating  any  transfer, 
whether  legal  or  equitable,  of  property  in  the  United  States. 
I  have  been  thus  minute  in  my  observations  on  this  case, 
because  it  has  had  considerable  effect  on  my  mind,  in  form- 
ing my  judgment  upon  the  subject  before  us.  I  regard  it  as 
a  case  in  point,  decided  with  unanimity  in  the  highest  Court 
in  the  Union,  to  whose  jurisdiction  the  interests  of  foreign- 
ers are  peculiarly  intrusted. 

I  admit  that  the  American  as  well  as  British  decisions 
assert,  that  the  assignees  under  a  foreign  commission  of 
bankruptcy  are  considered  as  the  substitutes  of  the  bank- 
rupt, and  may  support  suits  in  their  own  names.  As  be- 
tween the  bankrupt  and  debtor,  this  operation  is  fair,  pro- 
vided the  debtor  is  made  safe  in  his  payment ;  but  when  it 
is  extended  further,  and  thereby  affects  the  rights  of  stran- 
gers, it  assumes  a  different  character.  The  British  courts 
will  not  permit  the  subjects  of  that  kingdom  to  contravene 
their  bankrupt  system  ;  but  unless  in  the  two  cases  of  Sole- 


OF  PENNSYLVANIA. 


375 


inons  v.  Ross,  and  Jollet  et  al.  v.  Deponthieu  ft  aL,  I  know 
of  no  decisions  which  attribute  this  extra-territorial  effect" 
to  foreign  laws  and  institutions. 

I  fully  agree,  that  we  should  pay  sedulous  attention  to  the 
comity  of  nations.  Such  courtesies  tend  to  harmonize  man- 
kind, promote  public  convenience,  and  enlarge  the  circle  of 
human  happiness  in  a  social  state.  But  our  complaisance 
should  be  confined  to  reasonable  and  temperate  limit?.  At 
all  events  I  would  be  fully  satisfied,  that  the  British  courts 
sustain  the  doctrine  contended  for  by  the  plaintiff  in  error, 
as  to  the  effect  of  our  own  bankrupt  system,  before  I  give 
my  assent  thereto.  Reciprocity  in  such  instances  is  true 
equity  as  well  as  sound  policy.  That  fact  remains  yet  to  be 
ascertained,  and  I  avow  my  incredulity.  Persons  trading  to 
England,  and  coming  there  occasionally,  although  not  resi- 
dent in  that  kingdom,  may  be  declared  bankrupts  by  their 
laws.  Cowp.  402.,  1  Atk.  82.  It  is  well  known,  that  their 
practice  has  been  conformable  thereto.  All  intervening  acts 
between  the  act  of  bankruptcy  committed,  and  the  assign- 
ment by  the  British  commissioners,  as  to  the  personal  pro- 
perty of  the  bankrupt,  are  avoided  by  the  English  statutes. 
Cook's  Bank.  Law  584.  The  effects  of  such  a  doctrine,  ope- 
rating on  such  property  in  a  foreign  country,  are  too  obvious 
to  require  any  detail.  Persons  feel  the  difficulty  of  proving 
debts  under  a  commission  of  bankruptcy  among  ourselves. 
How  much  must  it  be  enhanced,  when  those  proofs  are  to 
be  made  in  Great  Britain,  at  the  distance  of  a  thousand 
leagues  from  the  scene  of  the  transactions.  In  times  of  war 
between  the  two  countries,  dividends  would  not  be  paid  in 
England.  My  feelings  are  repugnant  to  sending  our  citizens 
to  foreign  tribunals,  to  recover  their  debts,  when  full  justice 
may  be  dispensed  to  them  in  their  own  country ;  and  I  can 
discover  no  uniform  imperious  rule,  which  enjoins  this 
hardship  upon  them. 

Upon  the  whole,  on  the  fullest  reflection,  I  do  not  see  my 
way  sufficiently  clear,  to  subject  our  citizens  to  such  embar- 
rassments and  inconveniences,  upon  the  principles  of  a  sup- 
posed comity;  and  I  am  therefore  of  opinion,  that  the  effects 
in  the  hands  of  the  garnishee  were  liable  to  the  attachment 
of  Moreton,  notwithstanding  the  bankruptcy  of  Topham, 
and  that  the  judgment  of  the  District  Court  be  affirmed. 


1814. 


MILNE 
v. 

MOUETOM. 


376 


CASES  IN  THE  SUPREME  COURT 


1814. 


MILNE 
v. 

MORETON. 


BRACKENRIDGE  J.  Take  the  case  to  be  that  the  contract 
'was  made  here,  that  is,  in  this  state,  money  advanced  to 
Topham  Or  his  agent  here  to  be  satisfied  by  the  shipment 
of  goods  from  England^  and  the  goods  not  shipped  to  satisfy 
according  to  the  contract ;  (fbr  not  being  shipped  to  the 
whole  amount  of  the  sum  advanced,  the  contract  cannot  be 
said  to  be  wholly  satisfied  ;  in  that  case,  Topham  became  in- 
debted for  the  deficiency,  and  not  having  a  domicil  here,  so 
that  he  could  be  arrested,  his  property  became  liable  to  an 
attachment  to  compel  an  appearance.  But  the  property  at- 
tached had  ceased  to  be  his  before  the  attachment  did  attach, 
and  it  is  admitted,  and  could  not  but  be  admitted  by  intel- 
ligent counsel,  that  a  transfer  for  a  valuable  consideration 
by  himself  before  the  attachment,  would  exclude  it.  By 
operation  of  law,  the  consequence  of  an  act  of  bankruptcy 
on  his  part,  the  property  was  transferred,  and  the  attachment 
excluded.  Topham  a  merchant  in  England  was  subject  to 
the  bankrupt  law  of  England,  and  an  act  of  bankruptcy  on 
his  part,  had  wrought  a  forfeiture  of  his  effects  for  the  use 
of  his  creditors.  I  take  no  distinction  between  the  act  of 
law  transferring,  and  his  own  act.  He  committed  the  act  of 
bankruptcy,  and  the  law  operating  on  this,  transfers.  It  works 
an  alienation.  It  his  own  act,  what  the  law  does  for  him, 
because  he  must  be  considered  as  having  originally  given 
an  assent  to  this  law  which  operates  the  tranfer,  if  it  were 
necessary  to  recur  to  the  subtlety  of  first  principles  in  the 
case,  to  prove  the  act  of  law  to  be  the  same  thing  as  a  vo- 
luntary act  on  his  part.  But  I  lay  out  of  the  question  all 
idea  of  voluntary  or  compulsory.  He  did  the  act  to  which 
the  law  annexes  the  consequence  and  effect  of  a  transfer. 

The  property  attached  was  the  property  of  Topham  at 
the  act  of  bankruptcy.  It  was  his,  with  as  complete  an 
ownership  as  he  would  have  had  over  it  in  England.  There 
is  no  law  here  to  secure  that  property  from  his  own  transfer, 
and  for  the  use  of  his  creditors  here.  It  can  therefore  make 
no  difference,  whether  he  himself  has  transferred,  or  his  own 
law  for  him.  In  contemplation  of  law  it  is  his  act.  There  is 
no  lex  loci  bearing  on  the  contract.  The  locus  contractus  has 
nothing  to  do  with  the  case.  The  question  respects  the  pro- 
perty, whether  it  remained  his,  or  was  transferred  at  the 
time  of  laying  the  attachment.  If  it  were  material,  I  would 


OF  PENNSYLVANIA. 


377 


say  the  contract  was  made  in  England.  It  was  not  until  the 
money  advanced  came  to  the  agent  of  Topham  in  England,' 
that  by  his  agent  he  could  be  considered  as  assenting  and 
becoming  a  party  to  the  contract.  A  contract  requires  par- 
ties, and  the  union  of  two  or  more  minds  ;  and  it  could  be 
only  by  accepting  the  money  advanced,  that  he  could  be 
considered  as  assenting  to  the  contract  to  ship  goods.  It  was 
only  on  this  act  that  the  law  could  raise  the  implication  of 
a  promise. 

Whether  a  debt  due  from  an  individual  of  a  home  govern- 
ment,  to  a  creditor  in  foreign  parts,  on  a  contract  in  foreign 
parts,  is  discharged  by  the  certificate,  where  the  creditor  in, 
foreign  parts  does  not  come  forward  to  prove  his  debt  under 
the  commission,  it  is  not  necessary  in  this  case  to  say;  for 
I  am  clear,  that  the  interest  attached  in  this  case  was 
transferred  by  the  act  of  bankruptcy,  and  was  no  longer  in 
him,  so  that  it  could  be  attached  for  his  debt.  The  attach- 
ment itself,  even  supposing  it  before  the  act  of  bankruptcy, 
could  not  appropriate,  and  nothing  could  do  it  short  of  a 
judgment ;  but  the  act  of  bankruptcy  here  was  before  evert 
the  attachment  laid,  so  that  there  can  be  no  question. 

An  interest  arising  on  a  contract  here,  unless  there  is 
some  law  with  us  to  exclude  it,  follows  the  person  as  much 
as  the  ownership  of  a  chattel.  There  is  no  difference  between, 
a  chose  in  action,  and  a  chose  in  possession,  in  this  respect. 
As  to  the  locus  contractus  and  lex  loci,  it  must  be  immate- 
rial, except  so  far  as  affecting  the  consideration  of  the  contract, 
the  evidence  or  the  enforcement  of  it,  or  the  right  of  trans- 
ferring and  carrying  it  out  of  the  country.  There  being  no- 
thing of  this  kind  in  the  way  here,  it  is  transferred  by  the 
bankruptcy,  and  is  the  same  thing  as  an  interest  arising  on 
a  contract  in  England.  The  domicil  of  the  owner  draws 
personal  property  with  it,  and  it  is  the  same  thing  as  if  in 
the  home  government. 

Trahit  additque  acervo. 

He  drags  it  to  his  domicil.  This  is  the  principle  upon 
which  I  put  the  case,  and  which  is  abundantly  recognized 
by  the  law  of  England,  and  by  the  decision  sof  this  Court. 

If  there  is  any  dictum  of  a  judge  of  the  courts  of  the 
United  States,  or  even  a  decision,  which  would  seem  to  break 
in  upon  the  unity  and  simplicity  of  the  system,  I  shall  se 

VOL.  VI.  3  B 


1814. 


MILNE 

v. 

MORETON. 


378  CASES  IN  THE  SUPREME  COURT 

1814.        more  about  it,  before  I  shall  be  disposed  to  follow  it.  I  can- 

j^      E       not  think  it  has  been  well  considered  by  the  judges  if  such 

-y.  decision  has  been  made.  As  to  the  inconsistencies  of  English 

MORETON.  judges,  I  should  pull  an  old  house  over  my  head,  were  I  to 

give  myself  the  trouble  to  look  into  them  ;  I  confine  myself 

therefore  to  reason  and  principle. 

Judgment  affirmed. 


Monday,  SCHWARTZ  and  another  against  The  Insurance 

^S  general  Company  of  North  America. 

agent  of  ship  and 

^opTty'or'np1118  action  was  brought  by  /.  F.  Schwartz  and  A.  L 
board,  the  war-      -L     Schwartz  who  survived  William  MiFadon,  on  a  policy 
in  a  poii^o^the7  of  insurance  for  20,000  dollars  made  the  19th  January  1807, 
ship,  is  violated.  Qn  t^e  shjp  ]\fargaret  valued  at  25,OOO  dollars,  at  and  from 
Batavia  to  Baltimore,  with  the  usual  liberty  of  touching  and 
trading   for   refreshments,   warranted   American  property, 
proof  to  be  made  in  Baltimore  only,  premium  7  2  per  cent. 
In  the  order  for  insurance,  it  was  mentioned  that  the  ship 
sailed  under  a  sea  letter  or  certificate,  and  that  her  cargo 
outwards  consisted  partly  or  in  the  -whole  of  articles  contra- 
band of  war. 

The  cause  was  tried  before  the  Chief  Justice  in  November 
last,  when  the  following  facts  were  in  evidence. 

The  Margaret,  belonging  to  the  plaintiffs  and  William 
M^Fadon  deceased,  who  were  American  citizens,  sailed  from 
Baltimore  on  her  outward  voyage  in  March  1804,  laden 
principally  with  gunpowder  and  other  contraband  articles. 
She  arrived  at  the  Cape  of  Good  Hope  in  May,  where  some 
of  the  articles  not  contraband  were  disposed  of,  and  those 
which  were  contraband  were  carried  in  the  ship  to  the  Isle 
of  France,  where  she  arrived  in  July.  She  was  there  de- 
tained by  an  embargo  for  a  considerable  time,  and  at  length 
sailed  for  Batavia  the  latter  end  of  November,  having  dispos- 
ed of  the  remainder  of  her  cargo,  including  the  contraband, 
to  the  agent  of  the  French  government  on  a  long  credit,  and 
having  received  an  advance  of  12,OOO  dollars  specie,  from. 
Buchanan  and  Bickham  on  account  of  the  debt  due  from  the 


OF  PENNSYLVANIA.  379 

French  government.  The  object  of  the  voyage  to  Batavia,  was        1814. 
to  take  in  a  cargo  of  coffee  and  sugar,  with  which  a  certain  Det-  *"^ 
mar  Smith  had  promised  to  supply  them,  and  to  receive  pay-        et  al. 
ment  in  bills  on  Baltimore.  In  "January  1805,  they  arrived  at  v. 

Batavia,  where  they  found  neither  a  cargo  nor  the  probability  INS>  COMPANY 
of  getting  one  in  a  short  time.  William  M^Fadon,  one  of  the  vr  AMERICA 
owners  of  the  ship,  had  gone  out  in  her  as  master,  with  full 
powers  to  manage  her  concerns,  and  those  of  the  cargo. 
Finding  no  likelihood  of  getting  a  cargo  shortly,  he  made 
an  arrangement  with  Christian  Lewis  Arnold,  a  Dutch  mer- 
chant residing  at  Batavia,  for  a  trading  voyage  to  Tranque- 
bar,  a  Danish  settlement  on  the  coast  of  Coromandel.  M'-Fa- 
don  left  the  ship  in  charge  of  John  Deshon  the  mate,  with 
provisional  orders  that  in  case  of  his  sickness,  the  command 
should  devolve  on  Samuel  Heard,  who  had  originally  been 
assistant  supercargo  ;  and  he  authorized  Heard  by  power  of 
attorney,  to  manage  the  concerns  of  the  cargo.  He  himself 
went  from  Batavia  in  February  1805  to  the  Isle  of  France, 
returned  to  New  Tork  in  January  1806,  and  died  before  the 
commencement  of  this  suit. 

Deshon  was  taken  sick,  and  Heard  came  into  the  full 
management  of  ship  and  cargo.  He  made  two  voyages  to 
Tranquebar,  in  partnership  with  Arnold,  the  first  of  which 
was  prosperous,  and  the  last  not  so.  In  August  1806,  hav- 
ing returned  to  Batavia  from  his  second  voyage  to  Tran- 
quebar, Heard  wrote  to  his  owners  under  date  of  30th 
August,  that  he  expected  his  return  cargo  to  Baltimore  con- 
sisting of  sugar  and  coffee,  would  amount  to  50,OOO  dollars. 
Afterwards  under  date  of  9th  November  1806,  he  wrote  that 
the  return  cargo  would  probably  amount  to  73,OOO  dollars, 
and  requested  insurance  to  be  made  accordingly.  On  the 
19th  December  1806,  he  wrote,  that  having  taken  a  conside- 
rable part  of  the  cargo  on  board,  the  ship  sprung  a  leak,  in 
consequence  of  which  the  cargo  was  unladen,  and  the  ship 
repaired  at  a  very  heavy  expence.  Heard,  in  order  to  raise 
money,  as  he  deposed,  for  these  repairs,  entered  into  a  writ- 
ten agreement  with  Arnold,  by  virtue,  as  he  therein  stated, 
of  a  power  of  attorney  from  the  plaintiffs,  by  which  it  was 
agreed  that  Arnold  should  advance  money  for  the  repairs  of 
the  ship,  and  also,  if  necessary,  for  payment  of  the  plaintiffs' 
one  half  of  that  part  of  the  cargo  in  which  they  and  Arnold 


380  CASES  IN  THE  SUPREME  COURT 

1814.  were  equally  concerned,  viz.  coffee,  sugar,  and  pepper,  to 
SCHWARTZ  *^e  amount  °f  50,OOO  dollars  or  thereabouts,  for  which 
et  al.  Heard  was  to  give  his  bills  on  the  plaintiffs  with  an  advance 
v.  of  28  per  cent.  The  rest  of  the  cargo  belonged  to  Arnold; 
INS.  Coat  PAKY  but  jn  or(jer  to  cover  it  from  British  capture,  the  whole 
N.  AMERicA.carS°  was  aPParentty  to  belong  to  the  plaintiffs ;  and  to  make 
the  deception  more  complete,  Heard  gave  his  bills  to  Ar- 
nold for  30,OOO  dollars,  the  amount  of  that  part  of  the  cargo 
which  belonged  to  Arnold,  under  an  express  understanding 
that  the  bills  were  not  to  be  paid.  To  make  Arnold  secure, 
the  ship,  cargo,  and  insurances,  were  hypothecated  to  him. 

In  March  1807,  the  ship  sailed  fiom  Batavia  bound  to 
Baltimore,  having  Arnold,  his  daughter,  and  six  slaves  on 
board  as  passengers.  Arnold  died  on  the  passage.  On  the 
8th  July,  the  ship  was  captured  by  a  British  letter  of 
marque,  on  suspicion  of  the  cargo's  being  Dutch  property. 
Heard  at  first  declared  that  the  whole  property  belonged  to 
the  plaintiffs,  according  to  the  ship's  papers  ;  but  the  British 
captain  having  discovered  some  papers  that  led  to  the  dis- 
covery of  Arnold's  partnership,  and  some  of  the  crew  hav- 
ing declared  that  they  believed  Arnold  to  be  interested, 
Heard  produced  the  written  agreement  with  Arnold,  and 
confessed  the  truth. 

The  ship  was  carried  to  Trinidad;  but  their  being  no 
court  of  admiralty  in  that  island,  proceedings  were  institut- 
ed in  the  Court  of  Vice  Admiralty  of  Barbadoes.  Heard 
entered  a  claim  for  the  ship  and  that  part  of  the  cargo  which 
belonged  to  the  plaintiffs,  but  both  ship  and  cargo  were  con- 
demned as  enemies'  property  or  otherwise  &c.,  with  the 
exception  of  the  property  of  Heard,  and  the  adventures  of 
the  mariners.  The  reasons  assigned  by  the  judge  for  the 
condemnation  were,  that  the  homeward  voyage  was  but  a 
continuation  of  the  outward,  and  was  the  result  of  an  ad- 
venture commencing  in  contraband ;  or  if  the  continuity  of 
the  voyage  had  been  broken  by  the  trading  from  Batavia, 
then  by  that  trading  and  the  residence  of  M'-Fadon  at  Ba- 
tavia, he  had  acquired  a  Dutch  character,  and  the  vessel 
had  become  an  adopted  Dutch  ship.  Heard's  adventure  he 
restored,  in  consequence  of  what  was  called  his  candor  in 
disclosing  the  true  interests. 

The  plaintiffs  heard  of  the  capture  on  the  30th  of  August 


OF  PENNSYLVANIA;  381 

1807,  and  on  the  next  day  directed  their  agents  in  Philadcl-       1814. 
phia  to  abandon,  which  was  accordingly  done.  SCHWARTZ 

These  are  all  the  facts  that  were  material ;  and  upon  them        et  al. 
the  Chief  Justice  explicitly  charged  the  jury,  that  the  war-           v- 
ranty  of  American  property  had  been  violated,  and  the  risk  *       °j 
of  the  voyage  increased,  by  the  improper  conduct  of  thej^.  AMERICA. 
plaintiff's  agent,  and  therefore  that  they  were  not  entitled  to 
recover.  The  jury  found  a  verdict  in  conformity  with  the 
charge,  and  the  cause  came  now  before  the  Court,  upon  a 
motion  by  the  plaintiffs  for  a  new  trial. 

J.  £.  Ingersoll  and  Dallas  for  the  plaintiffs.  By  the  order 
of  insurance  the  defendants  knew  that  the  Margaret  carried 
contraband  on  the  outward  voyage ;  and  therefore  all  the 
consequences  of  that  fact,  were  within  their  contemplation. 
They  knew  that  as  the  cargo  belonged  to  the  same  owners, 
the  ship  was  liable  to  capture  and  condemnation.  The  JRin- 
gende  Jacob  (a),  2  Azuni  415,  British  Order  of  24th  June 
1803,  Chitty  318,  126.  If  therefore  she  was  met  by  an  ene- 
my, the  event  which  actually  occurred  must  have  been 
foreseen,  and  it  was  encountered  by  the  defendants  for  the 
premium  which  they  received.  The  condemnation  then 
having  been  on  the  very  ground  of  contraband,  and  that 
ground  having  been  disclosed  and  the  risk  assumed  by  the 
underwriters,  it  is  merely  a  refinement  to  attempt  to  protect 
them  from  liability  by  setting  up  a  breach  of  the  warranty 
of  neutrality.  But  in  reality  there  has  been  no  such  breach. 
The  conduct  of  the  agent  did  not  forfeit  any  of  the  neutral 
rights  of  the  ship,  nor  expose  the  underwriter  to  any  incon- 
venience or  risk  that  he  did  not  undertake  to  bear.  A  neu- 
tral ship  has  an  unquestionable  right  to  carry  enemy  pro- 
perty. Vattel  book  3.  ch.  7.  s.  115.  Vrozu  Henrica  (£).  If  met 
upon  the  ocean,  the  captor  has  an  equal  right  to  take  her  in. 
If  she  is  rightfully  taken  in,  she  is  not  entitled  to  costs  OP 
expenses  in  consequence  of  the  detention.  Chitty  318.,  4 
Inst.  22.,  Bynk.  Quest.  Jus.  Pub.  book  1.  ch.  14.  These  are 
legal  results  from  the  fact  of  carrying  enemy's  property;  and 
there  are  no  other  inconveniences  from  covering  it,  since 
it  is  perfectly  well  settled,  that  the  ship  is  not  forfeited  be- 
cause the  agent  of  the  owner  has  used  false  papers  to  skrecn 

(«)  1  Rob,  74.  (6)  4  Rob.  282. 


382  CASES  IN  THE  SUPREME  COURT 

1814.        the  cargo.  The  extent  of  the  forfeiture  is  the  freight,  to 
SCHWARTZ    w^c^  the  underwriters  would  not  be  entitled,  if  it  were 
etal.        allowed.  Chitty  301,  303,  328.     The  covering  is  beneficial 
v.  to  the  underwriter  on  ship,  because  without  involving  the 

°?IPANY  property  in  a  new  peril,  it  protects  it  from  one  that  is  ac- 
N.  AMERicA.tua^y  impending.  The  fraud  in  its  consequences  is  confined 
to  the  cargo.  In  the  present  case  there  was  no  animadver- 
sion by  the  judge  of  vice  admiralty  upon  the  false  papers; 
he  does  not  notice  it  as  an  ingredient  in  the  cause  ;  on  the 
contrary  he  restored  the  adventure  of  the  captain,  in  conse- 
quence of  the  fairness  of  his  conduct.  No  instance  can  be 
found  in  which  the  ship  has  been  brought  into  jeopardy,  ex- 
cept for  illegality  in  her  own  conduct,  or  fraud  in  her  own 
documents;  and  the  sole  object  of  the  warranty  was  the 
vessel,  her  documents  and  conduct. 

Hopkinson  and  Levy  for  the  defendants.  This  cause  was 
formerly  tried  before  Judge  Washington,  whose  opinion 
being  decidedly  against  the  plaintiffs,  they  suffered  a  non 
suit  when  the  jury  were  at  the  bar.  The  plaintiffs'  argu- 
ment is  partly  founded  upon  a  fallacy,  partly  on  a  misappre- 
hension of  the  law.  It  is  fallacious  to  put  the  case  upon  the 
communication  of  the  contraband ;  because  if  the  underwri- 
ters Icnew  or  supposed  the  ship  might  be  condemned  for 
that  cause,  which  from  the  amount  of  premium  it  is  clear 
they  did  not,  it  would  not  follow  that  they  were  to  bear  all 
or  any  other  risks,  which  the  misconduct  of  the  assured 
might  lead  to.  Nor  is  the  cause  of  the  condemnation  of  the 
slightest  moment,  though  if  it  be  material  as  to  part,  it  is  so 
as  to  the  whole  ;  and  the  judge  himself  did  not  say  whether 
it  was  contraband  or  Dutch  adoption,  that  had  the  most  in- 
fluence on  his  sentence.  The  latter  was  certainly  justified 
by  the  facts,  and  there  is  no  pretence  for  saying  they  were 
disclosed  to  us.  The  adoption  alone  was  a  breach  of  neu- 
trality. The  Vigilantia  (a),  1  Chitty  56. 

The  true  objections  to  the  recovery  are,  1.  The  breach 
of  the  warranty  by  covering  enemies'  property ;  2.  The  in- 
crease of  the  risk  by  the  same  cause. 

1.  The  warranty  of  neutrality  stipulates  for  neutral  pro- 

(«)  1  Rob.  10. 


OF  PENNSYLVANIA.  383 

perty,  neutral  conduct,  and  neutral  protection.     To  carry        1814. 
enemies  property  is  lawful;  to  skreen  it  by  false   papers,    Sc HWARTZ 
and  false  declarations,   is  unlawful.     It  is  taking  part  with        et  al. 
one  enemy  against  the  other,  contrary  to  the  obligations  of          v- 
neutrality.     It  is  prostituting  the  mantle  of  a  friend  to  dis-  INS*  Co*IPANr 
guise  and  shelter  an  enemy.     To  state  it,  is  sufficient  to^  AMERICA. 
shew  that  it  is  unneutral  conduct.    The  authorities  are  full 
to  the  point.  Pratt  v.  Phcenix  Ins.    Co.   (a),  Blag  v.  Nero 
York  Ins.  Co.  (£),  Calbraith  v.  Grade  (c),  Rich  v.  Parker 
(</),  Parkin  v.  Dick  (e).    And  it  is  a  matter  of  no  moment, 
whether  the  loss  is  occasioned  by  the  unneutral  conduct  or 
not.   1  Marsh.  348,  Park  318.  If  the  agent  of  the  ship  perpe- 
trates the  wrong,  his  principle  loses  his  indemnity.    2.  The 
risque  was  increased  j  for  although  a  vessel  may  be  legally 
taken  in  if  she  carries  enemy  property  openly,  although  she 
may  be  detained  and  costs  not  allowed  to  her,  yet  she  is 
not  subject  to  be  libelled  herself,  under  that  suspicion  which 
a  fraud  in  one  part  of  the  adventure  casts  upon  the  whole, 
she  is  not  subject  to  the  same  extent  of  delay,  and  above  all 
she  2*  not  exposed  to  pay  costs,  which  is  part  of  the  risk  that 
always  attend  unneutral  conduct,  and  would  infallibly  have 
been  inflicted  as  a  penalty  in  a  case  so  gross  as  this.  Chitty 
318,  303,  304.     There  are   other  points  in  the  cause,  par- 
ticularly the  hypothecation  to  Arnold ;  but  this   is  decisive. 

TILGHMAN  C.  J.  This  is  an  action  on  a  policy  of  insur- 
ance on  the  ship  u  Margaret"  on  a  voyage  at  and  from  Ba- 
tavia  to  Baltimore^  warranted  American  property.  In  the 
order  for  insurance  it  was  mentioned,  that  the  ship  sailed 
under  a  sea  letter,  and  that  her  cargo  out>  consisted  partly 
or  in  whole  of  articles  contraband  of  war. 

The  cause  was  tried  before  me,  and   the  jury  agreeably  „ 

to  my  charge  gave  a  verdict  for  the  defendants.  There  was 
a  great  deal  of  evidence,  and  many  points  of  law  were  discus- 
sed ;  but  the  charge  and  the  facts  necessary  to  explain  it  may 
be  reduced  to  a  narrow  compass.  [The  Chief  Justice  then 
stated  as  much  of  the  case  as  was  material.] 

On  these  facts,  I  directed  the  jury  to  find  for  the  defen- 
dants, being  of  opinion,  that  the  warranty  of  "  American 

(a)  2  Sinn.  324.  (c)  1  Marsh.  40C.  (,?)  2  Campb.  223. 

(4)  1  Marth.  406.         (d)  Id.  409. 


384  CASES  IN  THE  SUPREME  COURT 

1814.  "property"  was  violated,  and  the  risk  of  the  voyage  in- 
"~^ IT"  creased  by  the  improper  conduct  of  the  plaintiffs'  agent. 

et  al.  ^7  a  warranty  of  American  property*  it  is  understood, 

v.  not  only  that  the  ship  belonged  to  an  American  citizen  at 

INS.  COMPANY  tne  time  of  tne  insurance,  but  should  continue  so  during 

N  AMERICA  l^e  voyaSe »  an(^  tnat  l^e  captain  and  agents  of  the  owners 
should  conduct  themselves  conformably  to  the  laws  to 
which  neutrals  are  subject.  A  neutral  may  lawfully  carry  the 
goods  of  one  belligerent,  subject  to  the  right  of  capture  by 
the  other.  The  captor  takes  the  goods  paying  freight  to  the 
carrier  if  he  has  acted  fairly.  But  where  the  neutral,  not  con- 
tent with  carrying,  undertakes  to  cover  the  cargo  by  false 
papers  and  false  oaths,  he  violates  the  duties  of  neutrality  as 
well  as  morality ;  he  takes  part  in  the  war  by  favouring  one 
belligerent,  and  attempting  to  defraud  the  other.  In  answer 
to  this,  it  is  said  that  the  underwriters  have  no  reason  to 
complain,  because  having  been  informed,  that  part  of  the 
outward  cargo  consisted  of  contraband  articles,  they  knew 
that  the  ship  was  liable  to  condemnation.  If  they  did  know 
that  she  was  subject  to  condemnation,  it  is  strange  that  they 
should  insure  her  at  a  premium  of  seven  and  an  half  per 
cent.  It  is  more  probable,  that  considering  the  length  of 
time  between  the  commencement  of  the  outward  voyage 
and  the  underwriting  of  the  policy,  it  was  supposed  that  the 
taint  of  contraband  was  purged.  But  be  that  as  it  may,  the 
question  is  not  whether  the  underwriters  were  like  to  be 
injured  by  the  breach  of  the  warranty,  but  whether  the 
warranty  was  broken ;  for  if  it  be,  the  policy  is  vacated, 
though  the  ship  were  lost  by  a  peril  unconnected  with  the 
warranty. 

The  plaintiffs  rely  much  on  the  distinction  between 
ship  and  cargo.  The  fraud  say  they,  was  confined  to 
the  cargo,  and  therefore  could  not  be  visited  on  the  ship. 
This  is  so  far  true,  that  according  to  modern  usage,  the 
ship  is  not  condemned  for  the  fault  of  the  cargo,  except  in 
the  case  of  articles  contraband  of  war,  which  condemn  the 
ship,  if  they  belong  to  the  owner  of  the  ship.  But  although 
the  ship  be  not  condemned  for  the  carriage  of  goods  of  an 
enemy,  yet  when  the  captain  conducts  himself  fraudulently, 
heavy  expenses  may  be  incurred.  The  owner  of  the  ship 
is  subject  to  those  expenses ;  he  will  be  allowed  no  costs, 
and  in  gross  cases,  he  will  even  be  made  to  pay  costs.  Now 


OF  PENNSYLVANIA.  385 

if  the  warranty  is  not  broken,  he  has  a  right  to  recover  those        1814. 

costs  and  expenses  of  the  insurer.     Besides,  it  is  probable    gCHWARTZ 

that  the  ship  will  be  subject   to  more  delay,  when  these        et  a|. 

fraudulent  practices  are  discovered  by  the  captor,  than  if  all  v. 

was  fair.     When  it  is  found  that  the  cargo  is  covered,  Sus-lNSi  COMPANY 

picions  will  arise  as  to  the  ship  ;  hence  a  more  strict  scrutiny  ^    AMERICA. 

and  rigorous  prosecution  may  be  expected.    So  that  in  fact, 

the  risk  of  the  insurer  is  increased,  though  the  ship  be  not 

subject  to  confiscation.      My  sentiments  on  this  subject  are 

strengthened  by  the  opinion   of  the  Circuit  Court  of  the 

United  States  for  this  district.  The  plaintiffs  first  commenced 

their  action  there,  and  suffered  a  non  pros,  at  bar,  after 

hearing  the  charge  of  the  Court  against  them.     My  opinion 

is  against  a  new  trial. 

YEATES  J.  The  present  motion  for  a  new  trial  is  founded 
on  a  supposed  misdirection  of  the  Court  upon  the  trial  to 
the  jury,  that  the  insured  had  been  guilty  of  a  breach  of 
warranty  expressed  in  the  policy,  and  therefore  not  entitled 
to  recover  in  this  action.  All  the  circumstances  of  the  case 
from  the  period  of  the  ship  Margaret's  sailing  from  Balti- 
more to  the  Cape  of  Good  Hope,  in  March  1804,  to  the  time 
of  instituting  the  suit,  have  been  fairly  and  minutely  de- 
tailed by  the  Chief  Justice  in  his  charge,  which  I  will  not 
again  repeat.  I  shall  content  myself  with  observing,  that  the 
order  to  make  insurance  on  the  return  voyage  from  Batavia 
to  Baltimore,  dated  19th  January  1807,  stated,  "  that  the 
"  ship's  cargo  outwards  consisted  partly,  or  in  whole  of 
"  articles  contraband  of  war,"  and  that  the  policy  on  the 
ship,  pursuant  to  the  order,  contained  a  warranty  that  "  she 
"  was  American  property,  of  which  proof  to  be  made  in 
"  Baltimore  and  not  elsewhere." 

When  the  plaintiffs  institute  their  cause  in  this  Court, 
and  the  inquiry  into  the  observance  of  the  warranty  becomes 
indispensably  necessary,  the  insured  must  be  supposed  to 
admit  that  the  proof  must  be  had  here.  How  otherwise 
could  the  suit  be  tried  on  its  merits  ?  That  the  property  in 
the  vessel  was  in  truth  and  in  fact  American,  in  the  common 
acceptation  of  the  terms,  there  can  be  little  room  to  question  ; 
and  if  the  case  depended  on  that  construction  of  the  war- 
ranty, we  cannot  doubt  what  ought  to  be  the  result.  But 

VOL.  VI.  3  C 


386  CASES  IN  THE  SUPREME  COURT 

1814.        the  legal  extent  of  this  warranty,  and  the  fair  commercial 
SCHWARTZ    imP°rt  °f  fch*5  words  used,  must  govern  our  decision  in  this 
et  al.        instance. 

«•  American  here  means  neutral  property,  in  contra- distinc- 

INS.  COMPANY  tjon  tQ  bemgerent.  Now  it  is  fully  settled,  that  the  meaning 
N.  AMBRICA.°^  such  a  warranty  is  not  only  that  the  subject  insured  shall 
be  the  property  of  neutral  persons,  but  that  it  shall  be  neu- 
tral for  all  the  purposes  of  being  protected.  The  vessel 
must  be  navigated  according  to  the  laws  of  nations,  and  be 
furnished  with  every  document  proper  to  evince  such  neu- 
tral character.  No  anti-neutral  papers  on  board  should  com- 
promit  her  asserted  neutrality.  The  agents  of  the  insured 
as  well  as  the  insured  themselves,  should  do  nothing  in 
violation  of  the  rules  laid  down  by  civilized  nations  for  the 
conduct  of  neutrals.  It  cannot  be  said,  that  a  concerted  sys- 
tem of  deception,  studiously  calculated  to  defeat  the  known 
rights  of  one  of  the  belligerent  nations,  and  false  papers 
covering  enemies'  property,  sealed  with  perjuries,  can  be 
deemed  conformable  to  the  correct  conduct  of  neutrals. 

It  has  however  been  contended  by  the  plaintiffs'  counsel, 
that  the  acts  of  captain  Heard,  however  exceptionable  as 
to  the  cargo,  could  not  increase  the  risk  of  the  underwri- 
ters on  the  ship,  inasmuch  as  thev  were  fully  informed  that 
she  sailed  from  Baltimore  on  her  outward  voyage  with  con- 
traband goods  on  board,  which  was  a  sufficient  ground  of 
condemnation  both  of  shi  p  and  cargo,  whatever  change  the  ori- 
inal  goods  underwent  in  the  course  of  her  different  voyages, 
under  the  modern  doctrine  of  continuity.  I  answer  that  it 
is  not  material  whether  the  breach  of  the  warranty  conduced 
to  the  loss,  or  not.  The  warranty  is  a  condition  precedent, 
which  not  being  complied  with,  the  contract  of  indemnity- 
is  thereby  disolved  ;  and  the  correct  conduct  of  neutrals 
being  precisely  ascertained  by  many  judicial  decisions,  it  is 
equivalent  to  that  line  of  conduct  being  particularly  express- 
ed in  the  policy.  In  the  case  of  the  Phwnix  Insurance  Com- 
pony  v.  Pratt  fc?  Clarkson,  2  Btnney  324,  it  was  held  by  this 
Court  unanimously,  that  an  attempt  to  mask  goods  under  a 
neutral  cover,  was  a  breach  of  neutrality,  and  that  the 
owners  of  a  ship  were  responsible  for  the  conduct  of  their 
captain  who  must  be  considered  as  their  agent.  Admitting 
that  the  carrying  goods  contraband  of  war  into  an  enemy's 


OF  PENNSYLVANIA.  387 

port,  would  condemn  the  ship  and  cargo,  and  that  the  cover-        1814. 
ing  of  belligerent  property  by  the  neutral  vessel  under  false    SCHWARTZ 
papers,   would  only  condemn    the  property  of  the   enemy,        et  al. 
when  it  can  be  separated  from  what  is  bona  jide  neutral,  v' 

what  follows  from  hence  ?     Shall  the  insured  or  his  agents  Q, 

multiply  hazards  on  the  underwriters,  which  they  never  N.  AMERICA. 
agreed  to  run  ?  Shall  the  latter  be  subjected  to  other  risks 
than  those  expressed  in  their  contract  of  insurance,  although 
of  an  inferior  grade  ?  The  taint  of  contraband  had  infected 
the  outward  cargo  so  early  as  March  1804  j  but  there  would 
be  no  reasonable  grounds  to  suspect  the  existence  of  that 
fact,  when  the  Margaret  was  taken  by  the  Dominica  Packet 
on  the  8th  of  July  1807.  Unless  some  suspicious  circum- 
stances occurred,  which  tended  to  awaken  the  recollection 
of  the  first  illicit  voyage,  it  might  have  passed  into  oblivion 
so  far  as  respected  the  captors.  This  appears  not  only  pro- 
bable to  me,  but  to  be  the  very  truth  of  the  case.  The  Mar- 
garet arrived  at  Port  d^Espagne,  in  the  island  of  Trinidad, 
on  the  19th  of  July  1807.  Within  three  days  afterwards  it 
appears  by  the  record  of  the  Court  of  Vice  Admiralty,  that 
certain  depositions  were  taken  by  Archibald  Gloster  Esq. 
commissioner  of  the  Prize  Court  of  Barbadoes  resident  in 
Trinidad.  Upon  the  22d  of  July,  James  Co-will,  commander 
of  the  Dominica  Packet,  made  oath,  that  he  boarded  the 
Margaret,  and  detained  her  on  suspicion  of  the  cargo  on 
board  being  Dutch  property,  and  belonging  to  the  enemies 
of  the  United  Kingdom  of  Great  Britain  and  Ireland.  Andrew 
Arenstep  chief  mate  of  the  Margaret,  on  the  24th  of  the 
same  July,  in  answer  to  the  third  interrogatory,  made  oath 
that  the  Margaret  was  captured  on  suspicion  of  being  Dutch 
property ;  and  captain  Samuel  Heard  on  the  day  following 
made  the  like  answer  to  the  same  interrogatory,  and  to  the 
thirteenth  interrogatory  he  said,  that  the  bills  of  lading  for 
the  cargo  then  on  board,  in  asserting  it  to  be  American  pro- 
perty, were  not  true,  inasmuch  as  part  of  it  belonged  to 
Christian  Louis  Arnold.  In  his  deposition  taken  in  the  action 
in  the  Circuit  Court  on  the  1st  of  November  1808,  and  read 
by  consent  in  this  cause,  captain  Heard  swore,  that  after  the 
capture  and  detention  of  his  ship,  information  was  given  to 
the  British  by  the  crew  and  people  on  board,  that  they  had 
carried  out  contraband,  and  that  they  believed  the  ship  and 


388  CASES  IN  THE  SUPREME  COURT 

1814.        cargo  to  belong  to  Arnold.     These  particulars  satisfy  my 

SCHWARTZ    mmd,  tnat  unless  the  vessel  and  cargo  had   been  suspected 

et  al.         in  the  first  instance    to  have   been   enemy's  property,  she 

v.  would  not  have  been  sent  in  for  adjudication,  and  therefore 

INS.  COMPANY  ^  maskeci   property  materially  tended  to  the  injury  of  the 

N.   AMERicA.underwriters- 

I  desire  to  be  understood  as   concurring  throughout  in 

the  charge  of  the  Chief  Justice.  I  adopt  his  expressions  ; 
"  although  it  be  granted  that  it  is  not  usual  to  condemn  a 
"  ship,  even  where  the  cargo  has  been  covered  by  fraudu- 
"  lent  papers,  yet  the  fraud  is  punished  by  withholding 
"  freight  and  costs,  and  in  gross  cases  by  payment  of  costs. 
"  If  costs  are  paid  or  even  withheld,  the  risk  is  plainly  in- 
"  creased,  because  if  the  insurance  stands  good,  the  assurer 
"  must  indemnify  the  assured  against  such  costs."  Indepen- 
dently however  of  the  increase  of  risk,  I  have  already  said, 
that  if  the  defendants  had  either  by  themselves  or  their 
agents,  been  guilty  of  a  breach  of  their  warranty  of  neu- 
trality, they  are  not  entitled  to  recover. 

I  am  of  opinion  that  the  motion  for  a  new  trial  be  denied, 
and  the  judgment  be  entered  for  the  defendants  on  the 
verdict. 

BRACKENRIDGE  J.  It  seems  to  have  been  made  out  by 
the  counsel  for  the  plaintiff,  so  far  as  I  can  see  without 
further  examination,  that  hypothecation  does  not  affect 
the  neutral  character  of  a  ship;  that  it  would  not  be  a 
breach  of  a  warranty  of  neutrality  ;  and  that  the  carrying 
belligerent  property  does  not  affect  the  neutral  character  of 
the  ship.  If  so,  that  could  not  be  a  breach  of  the  warranty 
of  neutrality.  It  seems  also  to  have  been  made  out,  that 
covering  belligerent  property  can  affect  the  cargo  only,  not 
the  ship.  But  the  discovering  the  covering  might  lead  to  a 
stricter  examination,  and  produce  a  discovery  of  something 
else,  that  might  be  a  cause  of  the  condemnation  of  the  ship. 
But  that  cause  to  which  such  examination  might  lead  was 
known  to  the  assured,  and  the  risk  of  it  was  taken  on  them- 
selves. This  was  the  having  carried  contraband  of  war  on  a 
royage  out,  and  before  the  voyage  insured  had  commenced. 
This  was  the  cause  of  the  condemnation  of  the  ship  in  ques- 
tion. The  question  then  will  be,  the  insurers  having  taken 


'OF  PENNSYLVANIA.  389 

the  risk  of  the  carrying  out  contraband  of  war,  it  being       1814. 
known  to  them,  and  therefore  to  be  considered  as  excepted    SCHWARTZ 
out  of  the  insurance,  was  the  voyage  insured  to  be  consi-         et  al. 
dered  stript  of  this  circumstance,  and  to  be  as  if  it  had  not  v. 

existed?  I  cannot sav  that  I  can  otherwise  construe  it.  If  SO,INS<COMPANT 
the  carrying  belligerent  property  or  covering  it,  even  though  j^ 
it  did  increase  the  risk  of  discovering  this  taint  of  the  ves- 
sel, yet  it  did  not   increase  the  stain  for  which  the  vessel 
•was  condemned.     A  great  deal  has  been  said,  and  much  may 
be  justly  argued  on  the  subject.     But  the  inclination  of  my 
mind  on  hearing  the  argument   of  counsel,   and  which  I 
thought  very  able  on  both  sides,  was  for  the  plaintiff.  I  am 
shaken  doubtless,  by  the  opinion  of  others  against  me  ;  but  I 
am  not  prepared  to  concur  in  an  opinion  for  the  defendant. 

New  trial  refused. 


WlLKINS    against   BURR.  Philadelphia, 

Monday, 
July  28. 

rT"1HE  defendant  obtained  a  rule  upon  the  plaintiff  to  shew    If  the  plaintiff 

J-  cause  why  all  proceedings  iu  this  action  should  not  be  Un^i^conski""- 

stayed,  and  an  exoneretur  entered  on  the  bail  piece.  I?"?11  tha*  1t.he  ll<> 

•  fendant  will  not 

file  a  bill  against 

The  rule  was  granted  upon  the  following  facts:  The  de^lhe'dX^t 
fendant  was  held  to  bail  in  this  suit  in  March  1808.  Some-  performs  his  en- 

.  gfigement,  will 

time  after  the  commencement  of  the  suit,  his  attorney  wrote  stay  proceedings 
a  letter  to  Mr.  Clay  of  Kentucky,  where  the  plaintiff  lived, o^Lr  anVx^ere. 
requesting  him  to  file  a  bill  of  equity  against  the  plaintiff/"r  of  the  bail- 
to  obtain  an  injunction  against  the  further  prosecution  of  the 
suit,  or   if  this  should  not  be  granted,  to  get  his  answer  to 
be  read  on  the  trial.    After  several  interviews  between  Mr. 
Clay  and  the  plaintiff,  it  was  agreed  that  the  bill  should  not 
be  filed,  and  that  this  suit  should  be  discontinued.   Accord- 
ingly the  plaintiff  on  the   17th  June  1809,  wrote  and  deli- 
vered to  Mr.  Clay,  a   letter  directed  to  Joseph  Gratz  his 
agent  in  Philadelphia,  directing  him  "  on  the  receipt  of  this, 
"  to  dismiss  the  suit  ordered  against  Aaron  Burr  on  a  pro- 
tested bill  of  exchange."  The  letter  was  forwarded  to  the 
defendant's  attorney,  who  shewed  it  to  Gratz.     He  said  at 


390  CASES  IN  THE  SUPREME  COURT 

1814.        first  that  the  order  should  be  complied  with  ;  bat  after  a  few 

WILKINS     day's  delay,  declared  that  it  would  not  be  discontinued  with- 

v.  out  further  orders  irom  the  plaintiff,  to  whom  he  had  written. 

lit  UK.  He  atterwards  informed  the  attorney  that  he  had  received  a 
letter  forbidding  the  discontinuance ;  and  finally  filed  his 
own  affidavit,  that  when  the  bill  was  placed  in  his  hands  to 
bring  suit,  it  was  agreed  by  them,  that  any  money  recover- 
ed should  go  to  pay  a  debt  due  by  John  &f  Charles  Wilkins 
to  Simon  Gratz  &  Co.,  of  which  house  Joseph,  Gratz  was  a 
member. 

Hopkinson  shewed  cause  against  the  rule.  He  said  that  the 
rule  was  without  precedent.  That  in  this  way  the  Court 
might  be  called  upon  to  try  every  cause.  If  the  defendant 
had  any  merits,  he  might  plead  them,  and  submit  them  to  a 
jury.  Had  the  writing  been  a  release,  it  must  have  taken 
that  course  ;  and  certainly  the  letter  to  Gratz,  was  not  more. 
The  order  to  strike  off  was  revocable  in  its  nature.  The 
consideration  was  nothing.  The  defendant  might  at  any  time 
compel  an  answer;  and  the  plaintiff  offered  Mr.  Clay  and  is 
now  ready,  to  answer  any  interrogatories  of  the  defendant  on 
oath.  Besides  here  is  the  interest  of  a  third  person,  which,  to 
resist  this  rule,  is  sufficiently  proved  by  his  own  affidavit. 

Biddle  and  Lewis  for  the  defendant.  The  affidavit  of  Mr. 
Gratz  is  not  evidence  on  the  hearing  of  the  rule.  It  must  be 
considered  as  it  it  did  not  exist.  The  only  question  then  is, 
whether  this  Court  will  enforce  a  fair  agreement  to  discon- 
tinue, made  upon  a  sufficient  consideration,  and  in  part  car- 
ried into  effect  by  delivery  of  the  order  to  the  defendant's 
attorney.  The  order  was  irrevocable ;  Odes  v.  Woodward  (a), 
Manser  v.  Shelly  (£).  1  Tidd  495.,  1  Cromp.  318.,  Latch.  8  ; 
and  the  power  of  the  Court  is  unquestionable.  Baring  v. 
Shippen  (c),  Bonafous  v.  Rybot  (d).  It  was  material  to  the 
bail  who  had  relied  on  the  promise  of  the  plaintiff. 

TILGHMAN  C.  J.  In  considering  this  case  the  Court  can 
take  no  notice  of  Mr.  Gratz  or  of  the  house  of  Simon  Gratz 
&?  Co. ;  because  the  action  was  not  brought  for  their  use,  nor 
does  it  appear  by  legal  evidence  that  they  have  any  interest 

(a)  2  Ld.  Ray.  850.  (c)  2  Sinn.  167. 

(*)  Sir  T.  Bay.  69.  4  (J)  3  Burr.  1370. 


OF  PENNSYLVANIA. 


391 


in  it.  The  affidavit  of  Joseph  Gratz  might  be  received  by 
the  court  as  the  ground  of  a  motion  ;  but  when  the  motion' 
came  to  be  heard  on  its  merits,  no  regard  could  be  paid  to 
it,  because  he  was  an  incompetent  witness.  Taking  the  mat- 
ter as  it  stands  then  between  the  parties  to  the  action,  the 
defendant  only  asks  the  performance  of  the  plaintiff's 
agreement,  founded  on  a  good  consideration,  and  entered 
into  with  deliberation.  The  defendant  has  performed  his 
part  by  abstaining  from  filing  a  bill  in  equity,  and  it  is  im- 
possible for  us  to  say  that  he  may  not  be  injured  if  this  ac- 
tion is  suffered  to  proceed.  When  the  plaintiff  wrote  the 
order  for  discontinuing  the  suit  and  delivered  it  to  Mr.  Clay 
the  attorney  for  the  defendant,  it  became  irrevocable.  There 
is  no  suggestion  of  any  kind  of  deception,  imposition  or 
improper  conduct  in  obtaining  the  order.  The  case  falls  then 
within  the  reason  of  that  principle,  by  which  courts  compel 
the  specific  execution  of  agreements  concerning  suits  de- 
pending before  them.  I  am  of  opinion  therefore,  that  the 
rule  should  be  made  absolute,  annexing  one  condition  which 
justice  requires.  The  cause  has  been  depending  a  consider- 
able time  in  this  court,  and  it  is  possible  that  if  the  plaintiff 
brings  a  new  action  he  may  be  barred  by  the  statute  of  limi- 
tations. The  defendant  must  therefore  engage,  that  if  the 
plaintiff  discontinues  this  suit,  and  brings  another,  the  statute 
of  limitations  shall  not  be  pleaded. 

YEATES  J.  and  BRACKENRIDGE  J.  concurred. 

Rule  absolute. 


1814. 


WlLKIHS 
V. 

BURR. 


CLARK  and  another  against  ISRAEL.  Philadelphia 

Monday, 
July  .25. 

THIS  was  a  scire  facias  to  December  1812,  to  revive  a    A  discharge  un- 
judgment  entered  on  the  23d  April  1811,  for  fourteen ftftSSESfc 
hundred  and  seventy-two  dollars  thirteen  cents,  with  in.  1812,  does  not  dis- 

/,  turb  the  lien  of  a 

terest  from  the  1st  May  1810.  The  defendant  pleaded  pay- judgment, 
ment,  a  set  off,  and  a  discharge  under  the  insolvent  law  oftneSns 

13th  March  1812.  main  after  his 

assignment  and 
discharge,  subject 

as  before  to  proceedings  by  mortgagees  and  judgment  creditors.    If  the  defendant  is  in  possession, 

with  the  permission  uf  his  assignees,  it  is  not  necessary  to  serve  a  acire  facias  post  annum  et  diem 

upon  his  assignees. 


392 


CASES  IN  THE  SUPREME  COURT 


1814. 


CLARK 
etal. 

v. 
ISRAEL. 


Upon  the  trial  before  Teates  J.  at  a  Nisi  Prius  in  February 
"last,  the  defendant  produced  a  discharge  signed  by  the 
commissioners  on  the  15th  May  1812,  and  duly  filed  in  the 
prothonotary's  office  :  and  his  counsel  contended  that  the 
certificate  operated  as  a  complete  discharge,  not  only  as  to 
his  person,  and  property  subsequently  acquired,  but  also  as 
to  the  lien  which  the  plaintiff  had  on  the  real  estate  of  the 
defendant,  held  by  him  at  the  time  of  the  entry  of  the  ori- 
ginal judgment.  His  honour  reserved  the  point,  and  a  ver- 
dict was  by  consent  entered  for  the  plaintiff. 

In  addition  to  the  point  reserved,  it  was  now  argued  that 
judgment  could  not  be  entered  upon  the  verdict,  1.  Because 
the  real  estate  of  the  insolvent  had  passed  to  his  assignees, 
and  they  alone  had  power  to  sell.  2.  Because  the  assignees 
should  have  been  made  parties  to  the  scire  facias,  as  terre- 
tenants.  3.  Because  a  judgment  would  make  the  defendant, 
and  his  subsequently  acquired  property,  liable  to  execution. 

Milnor  for  the  plaintiff. 

Phillips  and  y.  R.  Ingersoll  for  the  defendants. 

TILGHMAN  C.  J.  having  been  prevented  by  indisposition 
from  hearing  the  argument,  gave  no  opinion. 

YEATES  J.  It  has  been  contended,  that  by  the  third  sec- 
tion of  the  insolvent  act  in  question,  5  Sm.  Laws  322.,  the 
certificate  of  conformity  "  shall  be  construed  to  discharge 
"  such  insolvent  from  all  debts  and  demands  due  from  him, 
"  or  for  which  he  was  liable,  at  the  date  of  such  certificate, 
"  or  contracted  or  originating  before  that  time,  though  pay- 
*'  able  or  liable  to  be  exacted  afterwards  &c.;"  and  that  the 
debt,  which  is  the  substance,  being  discharged  by  operation 
of  law,  the  judgment  grounded  thereon,  which  is  the  sha- 
dow, must  be  extinguished  also. 

I  profess  to  give  no  opinion  on  the  constitutionality  of 
this  law,  a  subject  which  has  lately  much  agitated  the  pub- 
lic mind.  The  counsel  on  both  sides  have  argued  before  us, 
on  the  ground  that  it  was  constitutional.  The  question  is, 
what  is  its  meaning  ? 

My  mind  would  require  the  most  clear  and  unequivocal 
expressions,  before  it  could  be  satisfied  that  the  legislature 


OF  PENNSYLVANIA.  393 

meant  in  any  instance  to  take  away  the  vested  rights  of  in-       1814. 
dividuals,  secured  to  them  by  law.  This  is  seen  in  the  bank-       CLARK 
rupt  laws,  wherein  it  is  declared,  that  a  judgment  without         et  al. 
an  execution  executed,  shall  give  no  preference  in  the  dis-  v' 

tribution  of  a  bankrupt's  effects.  The  people  are  bound  to  SRAEL- 
know  the  law,  and  may  guard  themselves  accordingly.  Tak- 
ing the  whole  of  this  third  section  together,  the  intention  of 
the  legislature  appears  to  be,  to  shelter  the  person  and  pro- 
perty of  the  insolvent,  acquired  after  his  discharge,  from  the 
demands  of  his  creditors.  "  No  person  so  discharged  shall  be 
"  liable  to  be  arrested  or  imprisoned  for  any  debt  or  demand 
**  due  from  him,  or  to  which  he  was  liable,  at  the  time  of 
"  the  said  discharge  &c."  In  the  eleventh  section  it  is  de- 
clared, "  that  the  assignees  appointed  by  virtue  of  this  act, 
"  shall  have  power  and  authority  to  redeem  mortgages  and 
"  conditional  contracts,  satisfy  all  judgments  &c."  Why  this 
classification,  unless  it  was  meant  to  put  mortgages,  and 
judgments  binding  lands,  on  the  same  footing,  and  to  draw 
a  line  of  distinction  between  them  and  other  debts  due  from 
the  insolvent.  In  fact  this  construction  was  admitted  by  the 
counsel  for  the  defendant. 

Moliere's  Lessee  v.  Noe,  4  Dall.  450.,  was  cited,  that  a 
purchaser  under  a  sale  of  land  by  order  of  the  Orphan's 
Court,  takes  it  discharged  from  the  lien  of  judgments.  This 
decision  was  had  under  the  twenty-first  section  of  the  act 
of  19th  April  1794,  that  "  no  lands  sold  under  such  orders 
"  should  be  liable  in  the  hands  of  the  purchaserybr  the  debts 
"  of  the  intestate"  I  heard  the  argument  in  that  case,  and 
though  I  was  confined  to  my  chamber  when  the  opinion  of 
the  Court  was  delivered,  fully  concurred  therein.  I  agree, 
that  no  inconvenience  will  result  if  the  Orphan's  Court  and 
the  administrator  do  their  duty.  It  will  be  seen  in  that  case, 
that  this  Court  clearly  held,  that  the  proceeds  of  sale  must 
be  applied  to  the  payment  in  the  first  place  of  the  liens 
which  existed  in  the  life  of  the  intestate,  according  to  their 
respective  priority.  If  the  sale  in  that  instance  had  been 
made  by  the  sheriff,  prior  to  the  sale  by  the  administrator, 
there  cannot  be  the  smallest  doubt,  but  the  purchaser  under 
the  judgment  and  execution  would  have  had  a  good  title. 

It  has  however  been  urged,  that  no  judgment  should  be 
rendered  on  this  verdict,  because  under  the  second  section 

VOL.  VI.  3  D 


CASES  IN  THE  SUPREME  COURT 


1814. 


CLARK 
etal. 

v. 
ISRAEL. 


of  the  law,  all  the  estate  real,  personal  and  mixed  of  the  in- 
solvent, is  vested  in  the  assignees ;  and  under  the  eleventh 
section  of  the  act,  they  have  power  to  execute  deeds  for 
real  estate,  and  to  satisfy  all  judgments  ;  and  hence  it  is  con- 
cluded that  the  assignees  only  can  convey  the  title  to  a  pur- 
chaser. I  cannot  conceive,  that  the  assignees  possess  the  ex- 
clusive right  of  selling  the  lands  of  such  insolvents  bound 
by  judgments.  Should  they  sell  the  lands  for  the  best  price 
that  could  be  procured,  and  fairly  distribute  the  money 
arising  therefrom  according  to  law,  it  would  certainly  do  no 
injury  to  the  judgment  creditors;  but  it  will  not  be  forgot, 
that  although  administrators  give  security,  this  is  not  re- 
quired of  the  assignees,  and  losses  may  thereby  happen. 
Besides,  shall  the  judgment  creditors  wait  with  the  means 
of  enforcing  payment  in  their  own  hands,  until  it  shall 
please  the  assignees  to  sell  the  real  estate  ?  Why  have  they 
in  the  present  instance  deferred  this  sale  above  two  years 
since  the  final  discharge,  with  the  complete  power  of  selling  ? 
It  appears  to  me  that  the  lands  of  the  insolvent,  after  his 
final  discharge,  may  be  proceeded  against  by  mortgagees 
and  judgment  creditors,  with  as  much  effect  as  if  he  had 
never  taken  the  benefit  of  this  law. 

It  has  likewise  been  said  that  the  assignees  should  have 
been  made  parties  to  this  scire  facias  as  terre-tenants.  To  this 
it  has  been  answered,  that  the  defendant  continues  in  the 
possession  of  the  house  intended  to  be  levied  on,  through 
the  permission  of  the  curators  and  assignees  under  the  pro- 
visions of  the  act,  and  that  he  only  can  be  deemed  the 
terre-tenant*  This  question  may,  if  it  be  thought  proper,  be 
agitated  at  a  future  day ;  at  present  we  will  not  anticipate 
the  decision.  We  have  nothing  to  do  with  it  at  present.  Let 
the  purchaser  look  to  his  own  security  and  title. 

In  the  last  place,  it  has  been  objected  that  the  entry  of  a 
general  judgment  on  the  verdict,  may  subject  the  defendant's 
future  acquired  property  and  person  to  the  hazard  of  an  exe- 
cution ;  and  ha.  we  have  no  power  to  enter  a  special  judg- 
ment* Ordinary  remedies  would  be  misapplied  in  extraor- 
dinary cases.  I  know  of  no  such  law  as  the  one  in  question 
in  the  English  statute  book,  and  therefore  no  precedent  of  a 
judgment  is  to  be  sought  for  in  that  quarter,  which  would 
suit  the  merits  of  tnis  suit*  I  know  of  but  cue  mode  which 


OF  PENNSYLVANIA.  395 

can  protect  the  individual  rights  of  the  parties,  and  effec-  1814. 

tuate  the  intentions  of  the  legislature,  which  is,  the  entry  of  CLARK 

a  judgment  on  the  verdict  for  the  plaintiff,  of  the  lands  bound  et  al. 

by  the  original  judgment  on  the  23d  of  April  1811;  and  such  -'• 
entry  in  my  opinion  should  be  made  in  this  action. 

BRACKENRIDGE  J.  concurred. 

Judgment  accordingly. 


Ir 


WITMAN  against  NORTON. 

July  30. 


CASE.   "  James  Button  on  the  26th  of  November  1812,    if  a  testator 
,  j        MI     blends  his  real 


,  j         MI 

"duly  made  and  published  his  testament  and  will  j  md  personal  es- 
"  (prout  the  will;)  and  on  the  29th  of  December  duly  made  £*>  ^rraelsi_ 
"  and  executed  a  codicil  thereto.  (Prout  codicil.)    He  died  due,  the  legacies 
"  on  the  -  day  of  January  1813,  and  on  the  l'3th  of  "he  lands^ 
**  January  1813,  the  said  will  and  codicil  were  duly  proved. 
"  At  the  time  of  making  the  said  will  and  codicil,  the  tes- 
"  tator  was  possessed  of  personal  estate,  and  seized  of  real 
"  estate,  but  the  personal  estate  was  insufficient  for  the  pay- 
"  ment  of  his  debts,  and  of  the  legacies  he  bequeathed  ;  and 
"  at  the  time  of  his  death,  the  personal  estate  continued  to 
"  be,  and  now  is,  insufficient  for  the  payment  of  his  debts 
"  and  legacies.     The  question  is,  whether  the  real  estate  is 
"  chargeable  with  the  legacies  bequeathed  to  the  plaintiff. 
'*  If  the  Court  shall  be  of  opinion  that  it  is,  then  judgment 
"  to  be  entered  for  the  plaintiff  generally  :  if  not,  thenjudg- 
**  ment  to  be  entered  in  his  favour  for  such  proportion  of 
"  the  legacies,  as  the  personal  estate  is  sufficient  to  pay." 

The  testator  by  his  will  and  codicil  gave  to  the  plaintiff 
two  legacies  of  one  hundred  pounds  each.  He  gave  pecu- 
niary legacies  to  other  persons,  without  naming  any  funds 
from  which  they  should  be  paid  ;  and  particularly  two  hun- 
dred pounds  to  trustees,  as  a  fund  to  repair  and  rebuild  the 
wall  of  Coates's  burial  ground  in  the  Northern  Liberties. 
He  also  made  a  very  special  provision  for  erecting  a  tomb- 
stone over  the  remains  of  his  parents,  some  others  of  his 
family  and  of  himself,  and  directed  his  executors  "  to  pay 


396 


CASES  IN  THE  SUPREME  COURT 


1814. 


WlTMAN 

•V. 

NORTON. 
4 


u  out  of  his  estate  all  the  costs  and  charges"  of  procuring 
and  erecting  it.  The  concluding  devise  was  as  follows  :  "As 
"  for  and  concerning  all  the  rest,  residue,  and  remainder  of 
"  my  estate  real  and  personal,  whatsoever  aralrwheresoever, 
"  not  herein  otherwise  disposed  of,  I  do  give,  devise,  and 
"  bequeath  the  same,  and  every  part  and  parcel  thereof, 
"  unto  the  corporation  by  the  name  of  the  Guardians  of  the 
*'  Poor  of  the  City  of  Philadelphia,  the  district  of  South- 
"  -wark%  and  township  of  the  Northern  Liberties?  in  trust, 
&c.  There  was  no  particular  devise  of  real  estate,  either  in 
the  will  or  codicil. 

The  case  was  submitted  without  argument  by  Sergeant 
for  the  plaintiff,  and  by  M^Kean  and  S.  Ewing  for  the  de- 
fendant. 

TILGHMAN  C.  J.  The  question  in  this  case  is,  whether 
the  pecuniary  legacies  bequeathed  by  the  will  of  James 
Dutton  are  a  charge  on  his  real  estate  ?  After  giving  seve- 
ral legacies,  he  devises  as  follows.  "  As  for  and  concerning 
"  all  the  rest,  residue,  and  remainder  of  my  estate,  real  and 
"  personal,  whatsoever  and  wheresoever,  not  herein  before 
u  otherwise  disposed  of,  I  do  give,  devise,  and  bequeath 
"  the  same  and  every  part  and  parcel  thereof  unto  the  cor- 
*'  poration  by  the  name  of  the  Guardians  of  the  Poor  of  the 
**  City  of  Philadelphia,  &c."  I  can  conceive  nothing  more 
plain  than  the  testator's  intention  to  give  only  what  re- 
mained after  payment  of  debts  and  legacies.  The  devise  of 
the  residue  has  not  the  semblance  of  a  specific  devise, 
but  shews  an  intent  to  give  every  thing  real  and  personal 
which  remained.  Some  of  the  legacies  were  of  so  peculiar 
a  nature,  (to  be  appropriated  to  the  purpose  of  keeping  the 
wall  of  a  grave  yard  in  repair,  and  erecting  tomb-stones 
over  the  bodies  of  testator's  ancestors)  that  it  would  be 
monstrous  to  think  of  defeating  them  by  the  subsequent 
devise  of  the  residue.  But  there  needed  not  that  circum- 
stance. The  intent  would  have  been  sufficiently  plain,  if 
there  had  been  no  other  than  the  usual  pecuniary  legacies 
to  friends.  Two  cases  have  been  decided  in  this  court  full 
as  strong  as  the  present,  and  I  think  rather  stronger.  Nidds 
v.  Postlethwaite,  2  Dall.  131 ;  and  Hassenclever  v.  Tucker, 
afterwards  affirmed  in  the  High  Court  of  Errors  and  Ap- 


OF  PENNSYLVANIA.  397 

peals.  2  Binney,  525.  My  opinion  is  that  the  legacies  are  a       1814. 
charge  on  the  land  ;  and  therefore  judgment  should  be  en-     WITH  AN 
tered  for  the  plaintiff.  -v. 

NORTON. 
YEATES  J.  and  BRACKENRIDGE  J.  concurred. 

Judgment  for  plaintiff. 


The  Commonwealth  ex.  re.  FREYTAG  against  The 
Commissioners  of  Philadelphia  County. 

Saturday, 
July  30. 

TN  this  case  a  rule  was  granted  upon  the  defendants,  to    A  justice  of  the 
shew  cause  why  a  mandamus  should  not  issue,  command-  asa^iuie^for"  ' 
ing  them  to  pay  the  bill  of  Michael  Freytag  esquire  a  j  us- tlie  Common- _ 

o  r   /  .  .  wealth  in  criminal 

tice  of  the  peace,  for  the  costs  of  his  attendance  in  sundry  cases,  isentiti.-d 
cases,  in  which  he  was  a  witness  for  the  Commonwealth  except  (IJonl' 
against  persons  indicted  and  tried  in  several  courts.  day  «lun"K  e»c^ 

court,  when  he  a 
bound  to  attend 

Ingersoll for  the  relator.  rfr£htarrdnghu 

recognizances. 

Browne  for  the  defendants. 

TILGHMAN  C.  J.  delivered  judgment. 

By  the  act  23d  September  1791,  the  county  pays  the  costs 
on  all  bills  returned  ignoramus  by  the  grand  jury,  and  also 
in  all  cases  where  any  person  is  convicted  of  an  offence 
punished  capitally,  or  by  imprisonment  at  hard  labour,  if 
the  defendant  had  not  property  sufficient  to  discharge  the 
same.  By  the  act  20th  March  1797,  the  county  pays  costs 
on  all  bills  of  indictment  found  by  the  grand  jury,  where 
the  defendant  is  acquitted  by  the  petty  jury.  The  commis- 
sioners have  doubts  whether  Mr.  Freytag  is  entitled  to 
costs  as  a  witness,  being  as  they  supposed  obliged  to  attend 
the  court  as  a  justice.  It  is  his  duty  to  attend  the  court  for 
the  purpose  of  returning  his  recognizances  &c.,  but  no  fur- 
ther. This  may  be  done  in  one  day  ;  only  one  day  therefore 
should  be  deducted  from  his  costs  as  a  witness.  It  is  not 
necessary  that  he  should  have  been  subpoenaed.  If  he  was 
under  recognizance,  or  even  requested  by  the  attorney 
general  or  his  deputy  to  attend  as  a  witness,  it  is  sufficient. 


398  CASES  IN  THE  SUPREME  COURT 


The  county  is  not  to  pay  costs  in  case  of  conviction,  if  the 
COMMON-     defendant  has  property.  It  is  the  duty  of  the  officers  to  make 
WEALTH     enquiry  for  property  before  they  charge  the  county.     But 
v-  if  they  know  of  no  property,  they  may  resort  to  the  county. 

PHILADEL-  *l  *s  ^e  ^utv  °^  t"ie  commissioners  ako  to  make  enquiry 
PHIA  COUNTY.  f°r  property,  and  if  they  find  reasonable  cause  for  supposing 
that  there  is  property,  the  officers  on  being  informed  of  this 
should  in  the  first  place  endeavour  to  procure  payment  from 
this  property.  With  regard  to  Mr.  Freytag's  present  de- 
mand, no  cause  is  shewn  to  the  Court  which  can  induce 
them  to  think  that  any  of  the  convicts  have  property.  We 
are  therefore  of  opinion,  that  the  rule  for  the  mandamus 
should  be  made  absolute. 

Rule  absolute. 


BRINGHURST  and  wife  against  CUTHBERT  and 

Philadelphia, 

Saturday,  another. 

July  30. 

devise^  to  trus-  rT^HIS  was  a  case  stated  for  the  opinion  of  the  Court,  in 
tees  the  dividends  A  the  following  terms  : 

and  income  ot  ° 

8000  dollars  old 

six  per  cent,  stock     peter  Knight,  late  of  the  Northern  Liberties  of  the  city  of 

of  the  United  ®  .«         « 

States  for  the  Philadelphia  merchant  deceased,  by  his  last  will  and  testa- 
hisPnLace,Uaned0f  mem  dated  the  18th,  day  of  September  1798,  gave  and 
upon  the  trust  bequeathed  to  Thomas  Cuthbert  and  Anthony  Cuthbert  the 

and  confidence  ...  i 

that  they  would  defendants  above  named,  "  the  dividends  and  income  of 
detTdsand'tncome,"  eight  thousand  dollars  six  per  cent,  stock,  debt  of  the 
and  apply  the  «  United  States  in  the  funds  of  the  United  States,  to  them 

same  for  trie  sup- 
port of  the  said   "  the  said  Thomas  and  Anthony  their  heirs  executors  and 

'maintenance  and"  administrators,  for  the  separate  use  of  his  the  said  Peter 
education  of  her  u  KniMs  niece  Elizabeth  Brewster  wife  of  William  Brew* 

children.    He  » 

also  gave  tothe     "  stery  and  upon  the  express  trust  and  confidence  that  they 

same  trustees  the  ...  .  ,  111  •  i  -jj'-ji  j 

principal  of  the  "the  said  trustees  should  receive  the  said  dividends  and 
said  8000  dollars  «  mcome  and  apply  the  same  for  the  support  of  the  said 

as  the  same  rr  J 

should  be  paid  off  «*  Elizabeth,  and  the  maintenance  and  education  of  her  chtl- 
the  government/  u  dren"  And  he  also  gave  and  bequeathed  to  the  said  trus- 
t«  be  held  in  trust  ts  fair  executors  and  administrators,  "  the  sum  of  six 

and  applied  as  he 

had  before  direct-"  hundred  dollars  money  on  the  same  trust  and  to  the  same 

ed  with  regard  to..  i  •   i    i       i      »      •  •       •  rt_  -j-t.. 

the  dividends  and     uses  to  which  he  had  given  the  income  oi  the  said  eignt 

income  thereof. 

Held,  that  the  trust  did  not  cease  upon  the  death  of  the  niece  and  the  arrival  of  her  children  at 
lawful  age;  but  that  the  trustees  were  to  pay  to  the  children  the  entire  dividends  of  the  stock,  in- 
cluding the  annual  instalment  of  principal,  until  the  whole  should  be  redeemed  by  the  United  Stater. 


OF  PENNSYLVANIA.    <  399 

u  thousand  dollars,  and  in  aid  of  and  by  way  of  addition  to       1814. 
* '  the  said  income."  He  also  gave  to  the  said  trustees  4t  the  BRINGHURST 
"principal  of  the  said  eight  thousand  dollars  as  the  same        et  ux. 
"  should  be  paid  off  and  discharged  by  the  government  of  the  v' 

"  United  States,  to  be  held  in  trust  and  applied  as  he  had  CUTHBERT 
"  before  directed  with  regard  to  the  dividends  and  income 
"thereof."  [Prout  the  said  will.]  The  executors  of  the  said 
will  assented  to  the  said  legacy  to  the  said  Thomas  and 
Anthony  Cuthbert  as  trustees  aforesaid.  The  said  eight 
thousand  dollars  six  per  cent,  stock  was  duly  transferred  to 
them  on  the  books  of  the  treasury  of  the  United  States,  and 
the  said  sum  of  six  hundred  dollars  duly  paid  to  them. 
During  the  life  time  of  the  said  Elizabeth  Brewster,  the 
dividends  and  income  of  the  same  were  regularly  paid  to 
her.  On  the  16th  day  of  September  1808,  the  said  Elizabeth 
Brewster  died,  leaving  two  children,  to  wit,  Margaret  the 
wife  of  Robert  Bringhurst  the  plaintiff,  which  said  Marga- 
ret became  of  full  age  on  the  22d  day  of  March  1807,  and 
Peter  K.  Brewster  who  is  yet  a  minor.  After  the  death  of 
the  said  Elizabeth,  the  said  trustees  paid  the  interest  on  the 
stock  and  monies  so  bequeathed  for  two  years,  one  half  to 
the  said  Robert  Bringhurst  the  plaintiff  in  right  of  his  said 
wife  Margaret,  and  one  half  to  William  West  guardian  of 
the  said  Peter  K.  Brewster.  Since  that  time  they  have  re- 
fused to  pay  the  said  interest  dividends  and  income  or  any 
part  thereof  to  the  said  Robert  in  right  of  his  said  wife  or 
otherwise,  and  have  also  refused  to  pay  the  principal 
monies  or  any  part  thereof  to  the  said  Robert  or  his  said 
wife.  The  said  trustees  have  since  the  death  of  the  said 
Peter  Knight  sold  the  said  eight  thousand  dollars  six  per 
cent,  stock  of  the  United  States,  and  have  now  in  their  hands 
the  proceeds  principal  and  interest  of  the  said  legacy,  the 
sum  of  715O  dollars  69  cents. 

The  questions  submitted  to  the  Court  are, 

1.  Is  the  said  Robert  Bringhurst  in  right  of  his  said  wife 
entitled  to   any  and  what  part  of  the  principal  monies  and 
interest  now  in  the  hands  of  the  said  Thomas  and  Anthony 
Cuthbert,  the  proceeds  of  the  said  legacy  ? 

2.  If  the  Court  should  be  of  opinion  that  the  said  Robert 
is  not  entitled  to  any  part  of  the  principal  monies  aforesaid, 


400 


CASES  IN  THE. SUPREME  COURT 


1814.        is  he  entitled  to  be  paid  any  and  what  part  of  the  interest 


BRINGHURST  thereon  ? 


et  ux. 

V. 
CUTHBERT 

etal. 


Judgment  shall  be  entered  conformably  to  the  opinion  of 
the  court. 

The  material  part  of  the  testator's  will  being  recited  in 
the  case,  it  is  only  necessary  to  state  further,  that  after  the 
bequest  above  mentioned,  he  gave  a  great  many  pecuniary 
legacies  to  different  persons  ;  and  then  devised  "  all  the  rest 
"  of  his  estate  real  personal  or  mixed,  after  his  debts,  funeral 
u  expenses,  and  the  preceding  legacies  were  paid,"  to  five 
persons,  one  fifth  each. 

Hare  for  the  plaintiffs.  1.  One  half  the  principle  is  paya- 
ble to  the  plaintiffs.  A  devise  of  the  dividends  of  stock,  is 
the  same  as  a  devise  of  the  stock ;  and  where  there  is  a 
gift  to  trustees  to  pay  the  produce  to  A,  without  words  li- 
miting the  duration  of  the  trust,  it  is  a  gift  of  the  principal. 
1  Fonbl.  169.  174.,  1  Bro.  Ch.  Rep.  532.  The  use  was  not 
entirely  in  Mrs.  Brewster  during  her  life,  because  it  was 
intended  that  the  trustees  should  have  the  management  of 
the  fund  for  the  benefit  of  the  children.  It  was  a  trust,  not 
a  use  executed.  7  Bac.  Ab.  124,  Uses  and  Trusts,  H.  3. 
But  since  her  death,  and  the  arrival  of  Mrs.  Bringhurst  at 
lawful  age,  the  use  is  executed  in  her  as  to  a  moiety,  parti- 
cularly as  the  fund  has  been  converted  into  money.  The 
testator  intended  the  principal  to  pass,  and  not  under  any 
circumstances  to  fall  into  the  residue ;  because  the  residue 
is  bequeathed  after  payment  of  the  legacies. 

2.  But  at  all  events  a  moiety  of  the  interest  is  payable. 
Although  education  may  be  limited  to  minority,  mainte- 
nance is  not.  The  whole  beneficial  interest  was  clearly  in- 
tended for  the  children ;  and  the  bequest  was  in  effect  an 
annuity,  for  such  is  the  stock. 

J.  R.  Ingersoll  for  the  defendants.  The  testator  intended 
that  the  legacy  should  remain  a  trust  so  long  as  the  stock 
was  unredeemed,  because  he  gives  the  principal  to  the 
trustees  as  it  should  be  paid  off  and  discharged.  They  are 
therefore  to  have  the  management  of  the  fund  for  that 
time. 

Where  dividends  of  stock  are  given  directly  without  the 


OF  PENNSYLVANIA;  401 

intervention  of  a  trust,  there  is  some  reason  for  construing        1814. 
it  a  gift  of  the  capital  or  stock  ;  but  where  a  trustee  is  inter-  BRINGHURST 
posed  to  apply  them,  the  cestuy  que  trust  can  never  call  for        et  ux. 
a  transfer  of  the  principal.     The  sale  of  the  fund  in  this  case  v- 

is  not  material,  because  the  question  is  whether  the  plain-      U    *BER 
tiffs  have  title ;  and  that  must  depend  upon  the  will. 

2.  As  to  the  interest,  the  trustees  merely  wish  the  opinion 
of  the  Court;  but  in  answer  to  the  plaintiff's  argument,  it  is 
to  be  remarked  that  the  provision  after  Mrs.  Brewster'a 
death  can  only  be  for  the  maintenance  and  education  of  her 
children,  both  of  which  terms  have  in  equity  an  ascertained 
reference  to  infancy  or  minority. 

TILGHMAM  C.  J.  The  intention  of  the  testator  is  not  as 
clearly  expressed  as  could  be  wished,  because  he  is  not  ex- 
plicit as  to  the  principal  of  the  80OO  dollars  stock  of  the 
United  States.  Yet  considering  the  nature  of  that  stock,  I 
think  it  may  be  concluded  that  he  did  not  mean  that  any 
part  of  it  should  return  to  the  mass  of  the  residue  of  his  es- 
tate. The  six  per  cent,  stock  is  no  more  than  an  annuity  for 
years,  part  of  the  principal  being  sunk  annually.  At  no  dis- 
tant period  then,  the  whole  will  be  paid.  It  would  be  giving 
a  construction  too  hard  against  the  legatees,  to  say  that  the 
trust  should  cease  when  the  mother  should  be  dead  and  the 
children  arrive  at  the  age  of  twenty-one.  It  is  true  that 
their  education  is  mentioned,  but  so  also  is  their  maintenance, 
which  would  be  as  expensive  after  the  age  of  twenty-one  as 
before.  The  words  of  the  will  may  bear  this  construction, 
that  the  whole  dividends  paid  by  the  government  annually 
should  be  applied  to  Mrs.  Breivster  and  her  children.  As 
to  the  time  past  then,  the  trustees  may  now  pay  the  full 
amount  of  all  the  dividends  which  would  have  been  receiv- 
ed if  the  stock  had  not  been  sold,  and  the  same  rule  may  be 
adopted  in  future.  This  is  going  as  far  as  can  reasonably  be 
done  in  favour  of  the  legatees.  The  principal  could  not  be 
paid  to  them  without  disregarding  the  will  of  the  testator. 

YEATES  J.  and  BRACKENRIDGE  J.  concurred. 

Judgment  accordingly. 

END  OF  MARCH  TERM,  1814. 

VOL.  VI.  3  E 


CASES 

IK   THE 

SUPREME  COURT 

Of 

PENNSYLVANIA. 

Lancaster  District,  May  Term,  1814. 
1814.  ILGENFRITZ  against  DOUGLASS. 


Lancaster,  »or>m> 

Thursday'  m  *-RROR. 

May  19. 

if  a  defendant   rTpHIS  action  was  commenced  in  the  Common  Pleas  of 

appeals  from  an 

award  in  the  Com-  -•-  Dauphin  county  after  the  one  hundred  dollar  law,  by 
than  a  hund^red^which  a  Party  recovering  less  than  a  hundred  dollars  in  the 
dollars,  and  the  Common  Pleas,  is  not  entitled  to  costs,  except  in  certain 

same  or  a  greater 

cum  is  recovered  Cases. 

on  the  appeal,  he 

is  liable  for  the 

costs  of  the  ap-         The  cause  was  referred  to  arbitration  by  the  defendant 

any  costs  before^  in  December  1809,  and  in  March  following  the  arbitrators 

the  appeal.          awarded  to  the  plaintiff  80  dollars,  without  costs  of  suit.  On 

the  same  day  the  defendant  appealed,  and  entered  into  a 

recognizance,  according  to  the  13th  section  of  the  arbitration 

law  of  29th  March  1 809.   The  cause  was  tried  in  September 

1811,  and  a  verdict  found  in  the  plaintiff's  favour  for  86 

dollars  7O  cents,  with  six  cents  damages  and  six  cents  costs. 

The  Court  below  were  of  opinion  that  the  13th  section  of 

the  act  of  29th  March  1809,  did  not  apply  to  a  defendant 

in  a  suit  commenced  in  the  Common  Pleas,  but  cognizable 

before  a  justice  of  the  peace ;  and  therefore  directed  the 

judgment  to  be  entered  without  any  costs. 

The  only  point  submitted  in  this  Court,  was  whether  the 
defendant  was  not  liable  to  the  costs  of  the  appeal. 

JJopkins  for  the  plaintiff  in  error. 
Elder  for  the  defendant  in  error. 


CASES  IN  THE  SUPREME  COURT,  8cc.  403 

PER  CURIAM.     The  defendant  below  was  subject  to  the        1814. 
payment  of  all  costs  subsequent  to  the  appeal ;  but  not  of  JLGENFRITZ 
any  costs  prior  to  the  appeal.  v. 

Judgment  reversed.        DOUGLASS. 


Gb  403' 

The  Commonwealth  against  IMMELL. 


May  21. 

defendant  in  this  cause  was  convicted  at  the  last  This  court  win 
Oyer  and  Terminer  for  Dauphin,  of  fornication  and  JJ^^rVwiit  of 
bastardy,  and  judgment  was  given.  He  afterwards  applied  error  in  a  criminal 
to  Judge  Teates  for  his  allocatur  to  a  writ  of  error,  upon  where  it  has  rea- 
the  ground  that  the  jury  had  been  drawn  by  the  sheriff  and  J2  JiHl^ 2S 
one  county  commissioner,  instead  of  at  least  trvo,  in  confor-  affecting  the 

J  merits  of  the 

mity  with  the  act  of  assembly  and  the  precept.  His  honour  particular  case, 
refused  to  allow  the  writ;  and  the  same  motion  was  noWp^^1"^"^" 
made  to  this  Court,  by  upon  other  cases. 

Godwin  and  Hopkins  for  the  defendant. 
Duncan  contia. 

TILGHMAN  C.  J.  Taking  it  for  granted  that  the  jury  was 
not  properly  drawn,  the  question  will  be,  Whether  this  Court 
ought  to  allow  a  writ  of  error  for  the  purpose  of  reversing 
the  judgment.  By  the  act  "  to  establish  the  judicial  courts 
"  of  this  Commonwealth,  in  conformity  to  the  alterations 
"and  amendments  in  the  constitution,"  (13th  April  1791) 
sect.  7.  it  is  enacted  that  no  writ  of  error  shall  issue,  "  unless 
"  the  same  shall  be  specially  allowed  by  the  Supreme  Court, 
u  or  one  of  the  justices  thereof,  upon  sufficient  cause  to  it 
"  or  him  shewn,  or  shall  have  been  sued  out  with  the  con- 
u  sent  of  the  attorney  general,  which  special  allowance  or 
"  consent  shall  be  in  writing  and  certified  on  the  said  writ." 
In  considering  the  sufficiency  of  the  cause  shewn,  the  court 
must  be  governed  by  some  fixed  principle  according  with 
the  intent  of  the  act  of  assembly,  and  conducive  to  the  pub- 
lic good.  I  have  always  supposed  that  it  was  not  sufficient 
to  shew  a  trifling  error  in  form,  but  that  the  court  or  judge 
should  be  satisfied  that  there  was  reason  to  think  there  had 
been  an  error  either  affecting  the  merits  of  the  case,  or  of  a 


404 


1814. 


COMMON- 
WEALTH 
v. 

IMMELL. 


CASES  IN  THE  SUPREME  COURT 

nature  so  important  with  regard  to  its  bearing  on  other 
"cases,  that  it  was  necessary  to  correct  it.  As  to  the  merits 
of  the  particular  case  before  us,  there  is  no  reason  to  sup- 
pose they  have  been  affected  by  the  error  complained  of. 
In  all  probability  the  jury  would  have  been  the  same,  if 
both  commissioners  had  attended.  Then  how  stands  the 
matter  with  respect  to  the  public  ?  There  is  no  important 
principle  of  law  to  be  settled ;  no  suggestion  that  the  court 
of  Dauphin  county  made  any  mistake,  or  refused  to  conr 
sider  any  point  brought  before  them  by  the  defendant.  No 
objection  was  made  to  the  jury ;  but  the  defendant  went  on 
to  trial,  either  with  a  view  to  reverse  the  judgment  in  case 
he  should  be  convicted,  or  (which  is  more  probable)  not 
then  knowing  the  error,  which  he  has  since  discovered. 
In  either  case  he  ought  to  be  bound  by  the  judgment.  If 
he  knew  of  the  defect,  and  took  the  chance  of  a  verdict  in 
his  favour,  with  a  secret  intent  to  overturn  it  in  case  it 
should  be  against  him,  he  acted  uncandidly.  But  if  he  did 
not  know  of  it,  he  has  only  himself  to  blame  for  ignorance 
of  what  appeared  on  the  record.  The  consequence  of  allow- 
ing this  writ  of  error  will  be  very  serious  j  for  if  we  allow 
it,  we  must  do  the  same  in  every  case  decided  at  the  same 
court,  so  that  we  shall  prostrate  the  whole  proceedings  of 
the  court  for  no  useful  purpose,  but  barely  to  incur  the  ex- 
penses of  new  proceedings  in  cases  which,  for  ought  that 
appears,  have  already  been  fairly  tried  and  justly  decided. 
In  my  opinion  this  would  be  an  exercise  of  discretion  not 
conformable  to  the  intention  of  the  act  on  which  the  defen- 
dant founds  his  motion.  I  am  therefore  against  the  allow-i 
ance  of  the  writ  of  error. 

YEATES  J.  having  previously  refused  the  allocatur,  gave 
no  opinion. 

BRACKENRIDGE  J.  concurred  with  the  Chief  Justice. 

Motion  denied. 


OF  PENNSYLVANIA.  405 

HANTZ  administrator  cum  test,  annex,  of  SEALY          1814 
against  SEALY.  T^^~ 


6b  405 

g'Sj 

59       7o  ,  . 

73    144  Jnonaay, 

IN  ERROR.  May  23. 


c  •*.  •      j.i_      r«  T»t  Marriage  is  a 

was  an  action  of  assumpsit  in  the  Common  Pleas  civ,i  contract, 
of  Tork    county,  brought  to  August  Term  1807,  ty^S^ 
Mary  Scaly  the  plaintiff  below,  to  recover  the  amount  of  the  words  in  the  pre- 
personal  estate  of  Henry  Sealy  her  late  husband,  bequeathed 


to  her  by  his  will.     The  Narr   contained  also  a  count  forbutlt  a  man  s*y* 

*  to  a  woman,  "  I 

money  had  and  received.    The  defendant  pleaded  ;   1.  Non"  take  you  for  my 

..    TII         ^»          i    •    ^-rr  !_•          T      "  wife,  '  and  the 

assumpsit ;  2.  Payment ;  3. 1  hat  the  plaintiff  was  his  wile,  woman  answers, 

'  to  be  sure  he  is 
'  my  husband, 

Upon  the  trial  of  the  cause,  the  plaintiff's  counsel,  in  sup- 
port of  thejirst  issue,  offered  in  evidence  the  will  of  Henry 
Sealy  dated  the    21st  of  March  1798,  and   certified  by  the^  ?< 
Register  of   Tork  county  to  have  been   duly  proved  by  themge. 

•  i  •  -  i     *          u       r    ~/i       •;     An  executor  is 

oaths  of  the  subscribing  witnesses,  on  the   12th   01  April not  liable  to  an 
1798.    To  this  the   defendant's  counsel  objected,  and  P^-^iii^he  pl-oblte 
duced  to  the  Court  in  support  of  their  objection  :     1.  Theof  the  wiiiissus. 
record  of  an  appeal  by  Henry  Hull  and  another,  made  onnorwiuanactiOQ' 


'good  enough," 
•eferring  to  a  past 
I  legal  marriage 


the  25th  of  June  1799,  to  the   Register's  Court  of 

county,  from  all  acts  and  decrees  of  the  Register  relative  to  squire  validity 

i  MI  •  .  A  i          r   iL       n       •          ,     /-,  bv  the  subsequent 

the  will  in  question:    2.  An  order  01   the  Registers  Court  confirmation  of 
on  the  4th  of  December  1799,  directine;  an  issue  of  devisavit^  W1"- 

°  In  an  action  of 

•oel  non  in  the  Common  Pleas  of  Tork  :  3.  The  record  of  the  debt  or  on  the 
trial,  verdict,   and  judgment  in  favour  of  the  will,  in  the 


Circuit  Court  in  May  1802  :  and  4.  The  record  of  an  appeal  c'ebt  due  fron} 

y  the  testator,  tiie 

from  that  judgment  to  the  Supreme  Court,  and  the  final  con-  plea  of  non  est 
firmation  of  the  will  in  May  1810,  more  than  two  years  asmmpsit  isTa 
after  this  suit  was  commenced.  The  counsel  for  the  plaintiff  a(jmis.s'1on,ot  *  >vlH 

ot  which  the  de- 

then  gave  in  evidence  that  on  the  12th  of  April  1798,  letters  fondant  isexecu- 
of  administration  with  the  will  annexed  pendente  lite  were  th          *  ™*' 


e  action 


granted  to  Boreas  FahnestocL  who  settled  his  account  in  far  a  demand  on 

winch  the  testator 

the  Orphan  s  Court  of  Tork  county  on  the  22d  of  September  ™&*  not  liable,  a» 

1802,  and  obtained  his  discharge  on  paying  over  the  balance  °' 

of  4334/.  14*.  3:^.  remaining  in  his  hands,  part  in  cash  and 

part  in  bonds  and  notes  &c.   to  the  defendant  Hantz,  who 

on  the  24th  of  September,  obtained  letters  of  administration 

de  bonis  non  cum  testamento   annexo,  and  received  the  ba- 

lance accordingly.  The  plaintiff's  counsel  also  gave  in  evi- 


406  CASES  IN  THE  SUPREME  COURT 

1814.  dence  that  Hantz  was  plaintiff  in  the  feigned  issue  in  the 
HANTZ Circuit  Court,  and  that  on  the  25th  of  May  1805,  after  the 
v.  appeal  by  the  defendants  in  that  suit  to  the  Supreme  Court, 

SEALY.  he  treated  the  appeal  as  if  it  had  been  abandoned,  and  issued 
execution  for  the  costs,  and  received  them.  From  this,  and 
the  acceptance  of  the  administration  it  was  inferred  that 
Hantz  was  estopped  from  alleging  that  the  paper  in  ques- 
tion was  not  the  will  of  Sealy,  or  that  the  appeal  was  sub- 
sisting  when  this  suit  was  commenced. 

Upon  the  whole  matter,  the  two  assistant  judges  against 
the  opinion  of  the  President,  admitted  the  will,  and  sealed 
a  bill  of  exceptions. 

Upon  the  second  issue  of  payment,  there  was  no  evidence. 

Upon  the  third,  it  was  proved  that  a  marriage  took  place 
between  the  plaintiff  and  defendant  before  a  clergyman  in 
the  month  of  January  1799;  that  he  and  she  had  given 
receipts  by  the  name  of  Jacob  and  Mary  Hantz  ;  that  they 
cohabited  as  man  and  wife,  had  children,  and  had  executed 
deeds  for  land,  in  which  she  was  stiled  his  wife,  and  had 
acknowledged  them  as  such.  At  the  time  of  this  marriage 
it  was  however  perfectly  clear,  that  the  defendant  had 
another  wife  living,  from  whom  he  had  been  separated 
according  to  his  own  notion  effectually,  but  without  any 
effect  whatever  in  law.  A  legal  divorce  was  afterwards 
obtained,  and  Hantz  and  Mrs.  Sealy  having  come  to  Mr. 
Watts  their  counsel  on  business,  he  advised  them  to  cele- 
brate a  new  marriage.  Hantz  then  said,  "  /  take  you  (the 
plaintiff)  for  my  wife ;"  and  the  plaintiff  being  told  that  if 
she  would  say  the  same,  it  would  be  a  complete  marriage, 
she  replied,  "  to  be  sure  he  is  my  husband  good  enough" 
Mr.  Watts  advised  them  to  repeat  the  marriage  in  a  solemn 
manner  before  a  clergyman,  and  he  thought  they  went  out 
for  that  purpose  ;  but  it  was  never  done. 

The  matters  objected  by  the  defendant  were;  1.  The 
marriage,  which  was  said  to  be  proved  both  by  the  ceremony 
before  Mr.  Watts,  and  by  the  cohabitation  and  acts  of  the 
parties.  2.  That  no  express  promise  having  been  proved, 
the  action  of  assumpsit  would  not  lie  upon  an  implied  pro- 
mise, until  after  a  settlement  of  the  administrator's  account, 
and  an  order  of  distribution  by  the  Orphan's  Court.  3.  That 
if  a  promise  might  be  implied  before,  at  all  events  it  could 


OF  PENNSYLVANIA.  407 

not  be  until  it  was  the  defendant's  duty  to  pay,  in  other        1814. 
words  until  the  will  was  established;  of  course  the  action       HANTZ~ 
was  premature.     4.  That  the  greater  part  of  the  property  v. 

being  in  bonds  and  notes,  the  plaintiff  could  not  recover  the       SEALT. 
amount  of  these  in  an  action  for  money  had  and  received, 
because  she  had  not  proved  their  conversion  into  money. 
5.  That  no  refunding  bond  had  been  filed  before  the  suit 
was  brought. 

The  President  charged  the  jury ;  1.  That  as  to  the  cohabi- 
tation and  acts  of  the  parties,  they  did  not  amount  to  a  mar- 
riage, but  were  facts  from  which  a  marriage  might  be 
inferred.  They  were  circumstances  on  which  to  ground  a 
presumption  of  marriage,  and  might  be  met  by  circumstances, 
shewing  that  they  were  founded  on  some  fact  unconnected 
with  marriage.  As  for  instance,  if  the  cohabitation  was 
merely  the  consequence  of  the  marriage  before  the  clergy- 
man, which  was  clearly  void,  and  if  the  acknowledgments 
referred  entirely  to  the  fact  of  that  marriage,  then  they  could 
not  be  considered  as  referring  to  any  other  marriage,  nor 
have  any  weight  in  proving  the  marriage  contended  for. 
These  facts  would  entirely  destroy  the  presumption  of  a 
legal  marriage,  that  would  otherwise  arise  from  the  cohabi- 
tation and  acknowledgments  ;  and  the  jury  were  to  decide 
upon  them.  As  to  the  marriage  before  Mr.  Watts,  there 
was  no  doubt  that  marriage  in  Pennsylvania  was  so  far  a 
civil  contract,  as  to  be  governed  by  the  municipal  laws  of 
the  state,  viz.  the  statute  and  common  law,  without  the  in- 
tervention of  any  spiritual  or  ecclesiastical  law,  as  in  Eng- 
land. There  was  no  particular  form  of  ceremony  established 
by  the  law  of  Pennsylvania  which  was  to  govern  in  all  cases  : 
but  marriage  was  a  very  important  and  solemn  institution, 
and  the  manner  in  which  it  was  to  be  contracted,  ought  to 
be  suitable  to  the  nature  and  inportance  of  the  engagement. 
It  was  not  absolutely  necessary  to  be  done  before  a  clergy- 
man, or  a  magistrate ;  but  it  ought  to  be  entered  into  with 
consideration  and  deliberate  assent,  and  ought  to  be  done 
formally  and  solemnly.  The  Court  did  not  think  it  neces- 
sary to  lay  down  any  rule  as  to  what  form  and  ceremonies 
might  be  requisite  to  form  a  marriage  ',  but  they  were  de- 
cidedly of  opinion,  that  the  facts  which  occurred  before 
Mr.  Watts  did  not  constitute  a  legal  marriage.  2.  That 


408  CASES  IN  THE  SUPREME  COURT 

1814*  where  assets  were  in  the  hands  of  an  executor,  the  law  would 
HANTZ  imply  a  promise  before  a  settlement  of  accounts  and  an 
order  of  distribution.  3.  That  as  to  the  effect  of  the  will,  it 
had  already  been  decided  by  a  majority  of  the  Court,  in 
receiving  it  as  evidence.  4.  That  the  jury  should  be  satisfied 
that  the  amount  claimed  had  been  received  by  the  defen- 
dant before  the  commencement  of  the  suit ;  but  that  the  jury 
might  presume  this  as  well  as  any  other  fact  from  the  evi- 
dence. Direct  proof  was  not  necessary.  5.  That  the  want  of 
a  refunding  bond  should  have  been  objected  on  the  return 
of  process  or  in  a  plea  in  abatement,  and  that  it  was  now 
too  late. 

To  this  charge  an  exception  was  taken,  and  all  the  points 
that  were  urged  below,  were  now  argued  in  this  Court,  by 
Montgomery  and  Duncan  for  the  plaintiff  in  error,  and  by 
Bowie  and  Hopkins  for  the  defendant  in  error. 

TILGHMAN  C.  J.  In  the  assignment  of  errors,  several  ex- 
ceptions are  taken  to  the  charge  delivered  by  the  President 
of  the  Court  of  Common  Pleas,  of  which  it  is  necessary  to 
take  notice  ;  but  the  main  ground  of  defence  is,  that  the 
plaintiffs  could  not  support  an  action,  until  the  validity  of 
the  will  was  finally  decided* 

The  defendant  pleaded  that  he  was  married  to  the  plain- 
tiff, on  which  issue  was  joined,  and  it  was  objected  that  the 
judge  ought  to  have  directed  the  jury  that  the  evidence 
proved  the  marriage.  The  judge  laid  down  the  law  correctly. 
He  told  the  jury  that  marriage  was  a  civil  contract,  which 
might  be  completed  by  any  words  in  the  present  time  with- 
out regard  to  form.  He  told  them  also,  that  in  his  opinion 
the  words  proved  did  not  constitute  a  marriage,  and  in  this 
I  agree  with  him.  The  plaintiff  and  defendant  came  to  their 
lawyer  Mr.  Watts  on  business,  without  any  intention  of 
marrying.  They  had  long  lived  in  an  adulterous  intercourse, 
although  they  considered  themselves  as  lawfully  married.  la 
fact  they  had  entered  into  a  marriage  contract  which  was 
void,  because  the  defendant  had  a  former  wife  living,  from, 
whom  he  had  been  separated  by  consent  but  not  legally. 
Some  time  before  the  parties  came  to  Mr.  Watts,  a  legal  di- 
vorce had  been  pronounced,  and  Mr.  Watts  advised  them, 
to  celebrate  a  new  marriage.  The  defendant  said, "  I  take 


OF  PENNSYLVANIA;  409 

*'  you  (the  plaintiff)  for  my  wife,"  and  the  plaintiff  being  told        1814. 
that  if  she  would  say  the  same  thing  the  marriage  would  be       HANTZ 
complete,  answered,  "  to  be  sure  he  is  my  husband  good  u. 

"  enough."  Now  these  words  of  the  woman  do  not  consti-  SEALY. 
tute  a  present  contract,  but  allude  to  the  past  contract, 
which  she  always  asserted  to  be  a  lawful  marriage.  Mr. 
Watts  advised  them  to  repeat  the  marrriage  in  a  solemn 
manner  before  a  clergyman,  which  was  never  done.  So  that 
under  all  circumstances,  it  appears  to  me,  that  what  was 
done  was  too  slight  and  too  equivocal  to  establish  a  mar- 
riage. 

2.  Part  of  the  personal  estate  which  had  come  to  the 
hands  of  the  defendant  was  cash,  and  part  bonds,  notes  &c. 
The  defendant  contended  that  this  action  for  money  had 
and  received  for  the  use  of  the  plaintiff,  could  not  be  sup- 
ported without  proof  of  the   money  having  come  to  his 
hands.  The  law  is  so,  and  in  looking  at  the  judge's  charge, 
I  find  that  he  so  declared  it,  but  told  the  jury,  that  although 
there  was  no  express  evidence  of  the  receipt  of  the  money  4 
yet  they  would  be  justified  in  concluding  that  it  was  re- 
ceived, if  they  were  satisfied  that  such  was  the  fact  by  cir- 
cumstantial evidence.  The  charge  therefore  was  right.  If  the 
jury  drew  a  wrong  conclusion,  it  is  not  for  this  Court  to 
rectify  it. 

3.  The  remaining  exceptions  may  be  reduced  to  one,  viz. 
whether  the  law  raised  an  assumption  to  pay  the  money  in 
the  hands  of  the  defendant  under  the  circumstances  of  this 
case.  In  considering  it,  we  must  take  the  case  as  it  stood  at 
the  commencement  of  the  action;  for  if  there  was  no  as- 
sumption  then,  nothing  which   has   happened   since    can 
alter  it. 

The  plaintiff's  claim  is  founded  solely  on  the  will  of  her 
husband,  and  the  only  evidence  of  that  will  which  the  law 
admits,  so  far  as  concerns  personal  property,  is  a  probate 
in  the  register's  court,  to  which  an  appeal  had  been  made 
from  the  act  of  the  register  individually  in  admitting  the 
will  to  probate  in  the  first  instance.  The  decree  of  the  re- 
gister's court  was  suspended  by  the  demand  of  an  issue  to 
tiy  the  validity  of  the  will,  and  it  is  enacted  by  the  act  of 
13th  April  1791,  that  the  verdict  returned  to  the  register's 
court  on  that  issue  shall  be  conclusive.  When  this  action 

VOL.  VI.  3  F 


410  CASES  IN  THE  SUPREME  COURT 

1814.        was  commenced  the  issue  was  not  finally   decided,  because 
HANTZ       although  a  verdict  had  been  taken,  and  judgment  entered  in 
v.  the  Circuit  Court,  there  was  an  appeal  to  the  Supreme  Court, 

SEALY.  which  held  the  validity  of  the  will  in  suspense.  The  verdict 
had  not  been  returned  to  the  Register's  Court,  nor  could  it 
be  returned  until  the  appeal  was  decided ;  for  upon  that  de- 
cision it  depended,  whether  the  verdict  should  stand  or  a 
new  trial  be  had.  In  this  situation  the  plaintiff  brings  her 
action,  founded  on  implication  of  law,  for  no  actual  promise 
is  pretended.  I  enter  not  into  the  question,  whether  any 
kind  of  action  can  be  supported  but  that  pointed  out  by  the 
act  "  for  the  more  easy  recovery  of  legacies,"  but  will  take 
for  granted  for  the  present  that  where  the  law  enjoins  pay- 
ment of  money,  it  raises  a  promise  to  pay.  What  was  the 
duty  enjoined  by  law  on  the  defendant  ?  He  was  bound  to 
pay  the  debts  of  the  deceased  as  far  as  the  assets  extended, 
because  the  propriety  of  paying  them  did  not  depend  on  the 
will.  Debts  must  be  paid,  will  or  no  will.  But  it  was  not  the 
duty  of  the  defendant  to  pay  any  thing,  which  depended  on 
the  will,  until  it  was  decided  whether  the  will  existed.  On 
the  contrary  such  payments  would  be  at  his  own  peril.  It  is 
very  clear  that  if  a  legacy  had  been  paid,  and  the  issue  had 
been  finally  decided  against  the  will,  the  defendant  would 
have  been  responsible.  The  plaintiff's  argument  then  leads 
to  this  ;  that  although  the  law  does  not  require  payment, 
and  prudence  forbids  it,  yet  the  law  raises  an  assumption 
to  pay.  The  conclusion  being  palpably  false,  the  assumption 
falls  to  the  ground,  and  therefore  the  action  cannot  be  sup- 
ported. 

But  it  has  been  strongly  urged  on  the  part  of  the  plaintiff, 
that  the  plea  of  non-assumpsit  was  a  confession  that  there 
was  a  will,  of  which  the  defendant  was  executor.  In  proof 
of  this,  cases  were  cited  which  shew,  that  in  actions  of  debt 
or  on  the  case  against  an  executor  for  a  debt  due  from  the 
testator,  the  plea  of  non  est  factum  or  non  assumpszt  is  an 
admission  of  a  will,  of  which  the  defendant  is  executor  ;  but 
those  cases  are  widely  different  from  the  present.  There  the 
matter  put  in  issue  was,  whether  the  testator  made  the  as- 
sumpsit,  or  whether  the  bond  was  the  deed  of  the  testator. 
Consequently  the  will  not  being  denied,  was  admitted.  But 
here  the  action  is  not  for  a  demand  on  which  the  testator 


OF  PENNSYLVANIA. 

was  liable,  and  the  plea  ofnon  assumpsit  applies  to  the  de-  1814. 
fendant  and  not  to  the  testator.  Under  this  plea  the  defen-  HANTZ 
dant  may  give  every  matter  in  evidence  which  shews  either  v. 

that  he  made  no  assumption  before  the  suit  brought,  or  that  SEALY, 
the  demand  was  extinguished  before  the  suit  brought.  Sup- 
posing upon  this  issue  it  had  been  proved  expressly ,  that 
the  plaintiff  had  a  cause  of  action,  but  that  it  did  not  arise 
until  after  the  commencement  of  the  suit.  Surely  he  could 
not  have  recovered.  Now  that  is  the  very  case  appearing 
on  this  record.  Whenever  the  will  was  finally  established, 
the  law  raised  an  assumption  j  but  that  was  not  till  after  the 
commencement  of  the  action.  I  am  therefore  of  opinion 
that  the  judgment  should  be  reversed. 

YEATES  J.  after  stating  the  facts  at  large,  delivered  his 
opinion. 

I  consider  the  exception  taken  to  this  suit  as  brought  pre- 
maturely, to  be  fatal.  Upon  this  point  I  wholly  concur  with 
the  President.  The  objection  was  founded  on  the  probate  of 
the  will  by  the  register,  the  operation  of  whose  sentence  re- 
mained in  suspense,  while  the  issue  taken  upon  the  validity  of 
the  will  was  pending  and  undetermined.  The  defendant  in 
error  relied  on  this  probate  only,  and  did  not  adduce  the  wit- 
nesses to  the  will,  nor  account  for  their  non-attendance.  Until 
the  will  was  finally  determined  on,  the  executor  or  adminis- 
trator with  the  will  annexed  was  under  neither  a  legal  nor 
moral  obligation  to  pay  the  legacies  devised.  If  he  made  such 
payments,  and  the  validity  of  the  will  should  be  afterwards 
established  in  the  dernier  resort,  he  would  risk  his  own  pro- 
perty. No  debt  due  from  the  testator  was  sought  for,  but  a 
demand  flowing  from  his  bounty.  Whether  he  had  been  thus 
bountiful  or  not,  formed  a  material  subject  of  inquiry.  The 
cause  of  action  arose  on  the  will  itself;  and  on  the  plea  of 
non-assumpsit,  every  species  of  defence  is  open  to  the  defen- 
dant. It  is  fully  settled,  that  on  this  issue,  every  thing  may  be 
given  in  evidence  which  shews  that  the  plaintiff  has  no  right 
to  recover,  except  perhaps  a  general  release.  2  Barnes  293., 
I  Ld.  Ray.  217.,  2  Stra.  733.,  3  Burr.  1353.  And  even  as 
to  this  exception  the  law  is  doubtful,  2  Burr.  1010.,  Buller 
148,  149.  The  plaintiff  below  was  bound  to  prove  her  case 
as  she  laid  it,  and  must  shew  an  existing  cause  of  action 
when  she  brought  her  suit.  A  legislative  exposition  of  the 


CASES  IN  THE  SUPREME  COURT 

1814.        effect  of  an  appeal  from  the  Register's  Court  is  given  in  the 

HANTZ       18th  section  of  the  act  of  13th  April  1791,  3  Dull.  St.  Laws 

v.  98.  "  No   appeal  from    the  decree  of  the   said  Register's 

ALY.       "  Courts  concerning  the  validity  of  a  will  or  the  ri^ht  to 

''administer,  shall  stay  the  proceedings  or  prejudice  the  act 

<'  of  any  executor  or  administrator  pending  the  same,  pro- 

"  vided  the  executor  shall  give  sufficient  security  for  the 

^  faithful  execution  of  the  will  and  testament  to  the  regis- 

«  ter  &c." 

The  case  cited  from  Godolphirfs  Orphan's  Legacy  64, 
third  edit.,  fully  proves  the  proposition  which  I  have  at- 
tempted to  establish.  There  debt  was  brought  by  an  execu- 
tor, and  the  will  proved  by  sentence  was  shewn  in  Court. 
The  defendant  pleaded  that  the  pretended  testator  died  in- 
testate, and  that  administration  was  committed  to  him,  and 
shewed  an  appeal  from  the  said  sentence  of  the  probate  of 
the  will.  Coke  and  Doderidge  held  that  the  appeal  suspend- 
ed the  probate,  and  so  upon  the  matter  was  not  any  probate 
at  all,  and  therefore  the  plaintiff  could  not  have  action. 

I  cannot  conceive  that  Hantz  is  concluded  by  taking  out 
letters  of  administration  de  bonis  non  with  the  will  annexed, 
from  insisting  that  legal  evidence  should  be  given  of  the 
will,  or  that  his  entry  of  a  judgment  in  the  Circuit  Court 
docket  on  the  25th  May  1805,  and  issuing  an  execution  for 
costs  returnable  to  December  term  following,  could  operate 
as  the  abandonment  of  an  appeal  instituted  by  his  adversa- 
ries, without  their  consent.  This  was  a  palpable  mistake,  and 
was  rectified  at  once  by  the  counsel.  The  appeal  to  this  Court 
remained  on  our  records.  It  is  admitted  by  the  counsel  of 
the  defendant  in  error,  that  he  brought  forward  his  appeal, 
and  argued  it  in  May  term  1810.  Why  was  this  done,  if  the 
appeal  had  been  previously  abandoned?  Why  was  it  thought 
necessary  that  the  decision  of  this  Court  should  be  pro- 
nounced ?  If  the  judgment  of  the  Circuit  Court  had  not  been 
affirmed  here,  previous  to  the  trial  of  the  present  cause,  it 
cannot  be  pretended  that  the  probate  of  the  will  before  the 
register  could  have  been  admitted  in  evidence.  I  can  see  no 
reason  why,  when  it  has  been  affirmed,  our  judgment  in  1810 
should  have  a  retrospective  effect  to  validate  proceedings 
instituted  to  August  term  1807. 


OF  PENNSYLVANIA.  413 

I  hasten  to  the  other  matters  assigned  for  error,  wherein        1814. 
I  fully  assent  to  the  charge  of  the  President  to  the  jury.  HANTZ 

His  remarks  as  to  marriage  being  a  civil  contract  by  our  v. 

laws,  I  take  to  be  perfectly  correct.  It  is  binding  between  SEALV. 
the  parties,  when  entered  into  with  full  consent  per  verba  in 
presenti.  The  acknowledgments  of  the  parties  being  man  and 
wife,  evidently  refer  to  the  illicit  connexion  between  them 
during  the  subsisting  marriage  between  Hantz  and  his  for- 
mer wife,  who  was  then  living  ;  and  as  to  what  passed  in 
the  presence  of  Mr.  Watts,  which  has  been  particularly  de- 
tailed by  the  Chief  Justice,  an  explicit  consent  was  not 
given  on  the  part  of  the  woman,  nor  did  he  himself  consi- 
der it  as  a  valid  marriage  at  the  time,  because  he  recom- 
mended to  them  more  than  once  to  be  married  by  a  clergy- 
man, and  he  thought  they  went  out  for  that  purpose. 

There  is  no  difficulty  in  saying  that  where  it  may  be  fair- 
ly presumed  that  money  has  been  received  for  the  use  of 
another,  there  is  no  occasion  for  express  proof.  If  the  case 
will  justify  it,  the  jury  may  presume  the  payment  of  money 
as  well  as  any  other  fact. 

And  as  to  the  tender  of  the  refunding  bond  to  the  plain- 
tiff in  error,  previous  to  the  commencement  of  the  suit,  if  he 
meant  to  have  made  that  a  serious  defect,  he  might  have 
brought  it  before  the  Court  upon  an  objection  against  the 
suit  being  sustained,  or  might  have  pleaded  it  in  abatement, 
so  that  the  fact  might  have  been  put  in  issue  and  fairly  tried. 
When  a  suit  for  a  legacy  has  progressed  to  a  trial  on  its 
merits,  and  no  complaint  made  of  the  want  of  a  tender  to  the 
executor  or  administrator  with  the  will  annexed,  before  the 
action  was  brought,  I  should  feel  myself  strongly  disposed 
to  assert,  that  the  party  had  slipped  his  time.  Here  the  re- 
funding bond  is  actually  filed  in  the  cause  ;  I  cannot  but 
consider  the  exception  as  a  surprize  on  the  plaintiff  below 
on  the  trial.  Upon  the  first  ground  alone,  I  am  of  opinion 
that  the  judgment  of  the  Common  Pleas  be  reversed. 

BRACKENRIDGE  J.  I  have  been  unwilling  to  request  this 
case  to  be  holden  under  advisement,  because  as  the  judg- 
ment is  to  be  reversed,  it  would  be  for  the  interest  of  the 
plaintiff  that  it  be  done  immediately,  that  she  may  go  on 
again.  At  the  same  time,  I  am  not  perfectly  satisfied,  that 


414 


CASES  IN  THE  SUPREME  COURT 


1814. 


HANTZ 
v. 

SEALY. 


the  judgment  might  not  be  supported.  But  it  would  require 
some  investigation  of  principle  before  I  could  venture  to 
give  reasons  of  dissent.  If  this  case  should  be  reported  with 
the  opinions  of  the  judges,  I  may  give  a  note  to  be  added 
to  the  report  on  the  subject.  I  have  been  wondering  only 
whether  the  defendant  ought  not  to  have  pleaded  at  an 
early  stage  the  caveat  against  the  will,  or  the  appeal  puts 
darre'tn  continuance,  so  as  to  give  the  plaintiff  an  opportu- 
nity of  replying  fraud  and  collusion,  or  the  special  matter, 
or  perhaps  negligence  in  the  execution  of  the  trust,  that  she 
might  by  damages  compel  an  administration  and  settlement. 
What  else  could  be  done  at  common  law  by  an  action  on 
the  case  or  account  render?  But  whether  our  system  super- 
sedes, that  will  be  the  question.  I  may  consider  it  perhaps, 
and  signify  my  concurrence  with  the  majority,  or  my  dis- 
sent, with  the  reasons  in  the  case. 

Judgment  reversed. 

Note  which  may  be  added  by  the  reporter. 

The  facts  of  this  case  are  these ;  the  will  of  Henry  Sealy  proved  I2th  April  1798. 

Administration,  with  the  will  annexed,  committed  same  day  to  Boreas  Fah- 
iiestock. 

22d  September  1802.  Settlement  of  Boreas  Fahnestock's  administration  account 
and  balance,  4334Z.  14s.  3d. 

September  24th,  1802.  Letters  of  administration  de  boms  non  with  the  will 
annexed  of  Henry  Sealy,  granted  to  Jacob  Hantz. 

Release  same  day  by  Jacob  Hantz  to  B-  Fahnestock%  for  the  balance,  money 
bonds  and  notes,  4334J.  14s.  3d. 

August  Term  1807,  the  present  suit  brought.  The  defendant  pleads  that  he 
did  not  assume  or  promise  to  pay.  2.  That  if  he  did  assume,  he  has  paid.  3.  That 
the  plaintiff  is  the  wife  of  the  defendant. 

The  Court  affirm  the  judgment  so  far  as  respects  the  opinion  of  the  Court  On 
-this  matter  of  fact  plea,  as  decided  by  the  jury. 

No  evidence  of  any  payment  appeared  or  was  alleged  on  the  evidence.  The 
whole  turned  on  the  plea  of  the  defendant  that  he  did  not  assume. 

This  he  attempted  to  make  out,  by  alleging,  that  he  was  not  bound  to  pay  until 
the  final  settlement  of  his  accounts.  The  question  then  will  be,  whether  a  legatee 
must  pursue  the  executors  or  administrators  with  the  will  annexed,  through  the 
medium  of  the  Register's  Court,  and  compel  a  settlement  by  citation,  attachment 
&c.  and  wait  until  all  is  ended  here  before  he  can  bring  a  suit.  The  result  of  my 
opinion  is,  that  the  legatee  may  bring  a  suit  without  waiting  for  this,  and  this  as 
well  at  common  law  as  on  our  act  of  assembly .  The  proving  assets  over  and  above 
the  debts  &c.  will  raise  a  promise  to  pay-  According  to  a  modern  decision, 
Coivper  284,  an  action  may  be  maintained  in  a  court  of  common  law,  against  an 
executor  in  that  character,  on  his  express  promise  to  pay  a  legacy  in  consideration 
of  assets.  And  in  another  case,  Coivper  289,  it  was  also  ruled,  that  on  the  same 
promise  grounded  on  the  same  consideration,  an  action  will  lie  against  an  execu- 
tor personally  in  his  own  right.  In  another  case.  3  Peere  Williams  208,  some 


OF  PENNSYLVANIA.  415 

judges  have  held,  that  policy  and  convenience  forbade  the  courts  of  common  law          1814. 
to  entertain  this  species  of  action,  since  they  can  impose  no  terms  on  the  party 


suing  ;  whereas  courts  of  equity  in  such  suits  interfere  in  a  manner  highly  bene-         llANTZ 
ficial  to  private  families.  Having  no  court  of  chancery,  our  act  of  assembly  gives  V. 

the  action,  and  our  courts  will  exercise  the  chancery  jurisdiction,  interposing         SEALY. 
terms  before  they  permit  execution. 

It  is  not  competent  to  the  executor  or  administrator  to  plead  non-assumpsit,  if 
he  means  to  rely  on  not  being  executor,  or  no  will  made  or  proved,  or  the  will 
caveated-  But  all  this  should  be  pleaded  in  the  first  instance, and  shewn  specially 
if  he  means  to  rely  on  it. 

From  the  circumstances  of  this  case  there  was  reason  to  believe  that  the  caveat 
was  procured  by  the  defendant,  or  at  least  a  continuance  of  it  procured ;  and  there 
was  no  way  of  getting  this  put  in  issue  before  a  jury,  but  by  the  defendant's  plead- 
ing it,  and  giving  the  plaintiff  an  opportunity  to  reply.  Although  the  defendant  ob. 
tained  letters  of  administration  &c.,  with  an  undertaking  to  settle  his  administra- 
tion account  within  a  year,  this  suit  is  not  brought  till  five  years  after,  and  yet  the 
defendant  alleges,  that  no  implied  promise  could  arise,  because  he  had  not  settled. 

It  may  be  urged  as  having  some  analogy  to  this,  that  where  a  writ  of  error  is 
brought  against  good  faith,  or  where  it  manifestly  appears  either  from  the  con- 
fession of  the  parties  themselves,  or  from  the  admission  of  the  attorney  of  the 
party  who  sues  out  the  writ  of  error,  or  from  expressions  equivalent  to  an  ad- 
mission, that  it  is  brought  for  the  mere  purpose  of  delay,  it  is  holden  to  be  no  su- 
persedeas.  6  Vin.  Sup.  185.,  4  Vin.  Sup.  70,71. 

Action  of  debt  lies  on  a  judgment  in  a  Court  of  Common  Pleas  after  writ  of 
error  brought,  and  the  record  removed  to  the  Court  of  King's  Uench.  6  Wila. 
Bacon  420,  421. 

An  action  of  trespass  for  mcsne  profits,  brought  pending  a  writ  of  error. 
20  Vin.  76. 

Writ  of  error,  only  a  snpersedeas  of  execution,  not  a  suit  on  a  judgment. 

The  power  of  an  executor,  or  the  right  of  a  legatee  or  devisee,  is  derived  from 
the  will,  and  not  from  the  probate. 

An  executor  may  file  a  bill  in  equity  before  probate,  and  a  subsequent  probate 
makes  the  bill  a  good  one.  3  Peere  Wms.  351. 

An  executor  accepts  the  trust,  or  administrator,  and  sufficient  assets  come  to 
hand,  is  he  not  bound  to  pay  without  an  express  promise,  which  he  cannot  be 
compelled  to  give  ?  See  Sac.  Abr.  Tit.  Legacy,  letter  M. 

See  letter  L.  Assent  to  a  Legacy,  4  Massa.  Rep.  634.,  See  2  Sail.  100., 
2  Peake's  Law  of  Evidence  344.,  1  Comyn's  Dig.  30.,  Bullets  N.P.  143. 
1  .-ilk.  293.,  1  Saund.  Wms.  edit.  Ill,  112,  note  2.,  Ib.  336.  note  10.,  3  Wils. 
Sac.  87.  letter  M.,  Ib.  95.,  1  Ld.  Ray.  265.,  2  Ld.  Ray.  1510,  1511. 

It  would  shew  the  necessity  of  pleading  the  caveat  depending  &c.,  and  what 
took  place  on  the  proving  the  will  and  the  appeal,  with  a  presumption  of  an  aban- 
donment of  the  appeal,  paying  costs  kc. 

From  all  those  it  is  abundantly  evident  to  me,  or  at  least  highly  suspicious,  tliat 
{he  caveat  was  by  collusion,  and  that  the  whole  was  done  to  baffle  the  legatee.  1 
incline  to  affirm  the  judgment  of  the  Court,  that  on  the  plea  of  non-assumpsit  the 
will  ought  to  have  been  admitted  in  evidence.  In  the  case  of  letters  of  udmiuis- 
iration  aud  non-assumpsit  pleaded,  2  Dall.  100,  seems  in  point. 


416  CASES  IN  THE  SUPREME  COURT  £;' 

8s,  5%, 
0s,338 

tfcraag 
-  -  '  -      STOEVER  against  The  Lessee  of  WHITMAN.    *»«3 

Lancaster,  .          °w  66 

Monday,  !N  ERROR.  /  19    ff? 

May  23. 

The  registry  ofTHiHIS  was  a  writ  of  error  to  the  Common  Pleas  of  Dau- 

births  and  deaths,  ,  . 

keptbyareligi-  A    />*m  COUDty. 

ous  society,  is  evi- 

dence; but  it  must  -       .      .              „             i                                                                                P 

be  proven  at  com-  In  the  lower  Court  it  was  an  ejectment  by  the  lessee  of 
ander*the  seaTof7  Whitman,  to  recover  the  possession  of  12  acres  26  perches 
the  corporation,  of  iano«  m  tne  town  of  Lebanon,  for  a  part  of  which  a  ver- 

is  not  evidence.  .  .  .  r  . 

A  recital  in  a    diet  and  judgment  were  obtained  by  him  ;  but  in  the  course 
of  the  tri^  bills  of  exceptions  were  taken  to  the  opinion  of 


the  property  of  D,  foal  Court,  which  now  came  up  with  the  record,  and  which, 

is  evidence  against  .  ....  .    .  r    , 

the  grantor         with  all  the  material  facts,  are  noticed  in  the  opinion  ot  the 

(though  not  con-/-,-]  .    /-  T 

elusive)  thauD    Chief  Justice. 

had  a  fee  simple 

in  the  land  ;  and  if  -  .        ^        *        .    t      .  _  . 

the  deed  further       Smith  and  Hopkins  tor  the  plaintiff  in  error* 

recites,  that  D's 
estate  had  been 

divested  by  an  en-     Godwin  and  Duncan  contra. 

try  of  the  grantor 
for  hreach  of  con- 

claims'  under  J>  TILGHMAN  C.  J.  Thefrst  exception  is  to  the  admission 
(but  not  under  o£  a  paper  purporting  to  be  a  copy  of  the  registry  of  the 

the  deed)  is  not  •»  >»  .  T<  .      .          , 

estopped  from  de-  German  Reformed  Congregation  at  Easton,  mentioning  the 
jjttSJSS  time  of  the  death  of  Eleanor  De  Haas.  This  paper  is  under 
himself  of  thefirstt^e  seaj  of  the  corporation,  and  certified  to  be  a  true  copy 
estate.  by  Jacob  Arndt  president,  and  Thomas  Pomp  secretary  and 


-  preacher  of  the  congregation 
stances  will  justify     jt  is  enacted  by  the  "act  for  keeping  a  registry  in  reli- 

the  presumption  »  ,  .       , 

of  a  deed,  and  it  is"  gious  societies,    passed  in  the  year  1700,  that  "  the  regis- 
trv  ^-^  by  any  religious  society  in  their  respective  meet- 
the  facts  u  m~  book  Or  books,  of  any  marriage,  birth  or  burial  within 

proved  will  justity          f  /  f      ,     „  ,       ,     ,  , 

the  presumption.  "  this  province  or  the  territories  thereof,  shall  be  held  good 
c«SmeinCae°pfarti-"and  authentic,  and  shall  be  allowed  of  on  all  occasions 

cular  place  toen-u  whatever." 

ter  for  breach  of  . 

a  condition  in  a  This  act  is  in  conformity  to  the  principles  of  the  common 
h^manrnenrdd.ffetlaw.  The  registry  is  good  evidence  of  the  death,  but  before 
ent  from  that  au-  jt  js  admitted,  proof  must  be  made  of  its  authenticity.  The 

thorized  by  the  ...  .         -  .          ..  , 

rules  of  the  com-  act  is  silent  as  to  the  mode  or  proving  this  j  we  must  tnere- 


term^of  the  deed,  ^ore  have  recourse  to  the  common  law  proof,  which  is  by 
is  inadmissible,     producing  the  original  registry,  or  a  copy  proved  by  the 

It  is  no  objec-    *  b    .  ,       ,  ,  .         .  \.    t.          •    •      1       T«- 

tion  to  a  convey-  oath  of  a  witness  who  has  compared  it  with  the  original.   J 

ance  of  land  in 

Pennsylvania.)  thattbe  grantor  was  out  of  possession  at  the  time. 


OF  PENNSYLVANIA. 


417 


was  contended  that  the  German  Reformed  Congregation 
being  a  body  corporate,  a  certificate  under  the  seal  of  the  cor- 
poration  was  evidence  of  the  truth  of  the  copy.  But  I  know 
of  no  such  principle.  Corporations  being  invisible  bodies, 
can  make  a  contract  only  by  their  seal,  which  is  visible. 
This  is  from  necessity.  But  there  is  no  necessity  for  their 
certifying  copies  of  their  acts.  It  might  be  convenient  if 
such  certificates  were  received  in  evidence;  but  that  alone 
will  not  authorize  courts  of  justice  to  receive  them.  The 
party  against  whom  a  fact  is  to  be  proved,  has  a  right  to 
call  for  the  oath  of  a  witness,  except  in  those  cases  where  it 
is  otherwise  ordered  by  act  of  assembly.  I  am  therefore  of 
opinion  that  the  paper  ought  not  to  have  been  admitted. 

The  second  exception  is  to  the  opinion  of  the  Court,  as  to 
the  several  deeds  produced  by  the  plaintiff  in  support  of  his 
title.  This  opinion  was  that  from  these  deeds,  it  appeared 
that  John  Philip  de  Haas  deceased,  under  a  devise  in  whose 
will  the  plaintiff  claimed,  died  seized  of  an  estate  in  fee 
simple.  The  land  in  dispute  consists  of  lots  in  the  town  of 
Lebanon,  amounting  to  12  acres  and  26  perches.  These  lots 
were  conveyed  in  fee  simple  to  different  persons,  by  the 
proprietaries  of  the  town,  reserving  an  annual  perpetual 
ground  rent,  with  power  to  distrain  for  the  same,  and  a 
condition  annexed,  that  if  the  rent  should  be  behind  and  un- 
paid in  whole  or  in  part,  for  the  space  of  thirty  days  next 
after  any  of  the  days  on  which  it  ought  to  be  paid,  and  no 
distress  could  be  found  on  the  premises  sufficient  to  satisfy 
the  rent  in  arrear,  with  all  costs  and  charges,  it  should  be 
lawful  for  the  grantors,  their  heirs  or  assigns  to  re-enter  and 
hold  the  same  as  in  their  first  and  former  estate,  and  from 
and  after  such  re-entry  the  indenture  by  which  the  estate 
was  conveyed  to  the  grantee  should  be  void  and  of  no  effect, 
and  it  should  be  lawful  for  the  grantors,  their  heirs  and  as- 
signs to  grant,  bargain  and  sell  the  premises  or  any  part 
thereof  to  such  persons  and  for  such  estates  as  they  should 
think  fit,  free  from  the  claim  and  demand  of  the  grantees  or 
their  representatives.  The  plaintiff,  doubting  whether  he 
should  be  able  to  deduce  a  direct  title  to  the  whole  premises 
from  the  proprietaries  of  Lebanon,  gave  in  evidence  a  deed 
from  the  defendant  Francis  Stoever  and  others  proprietors 
of  the  said  town  to  Samuel  Miley.  This  deed  contains  reci- 

VOL.  VI.  3  G 


1814. 


STOEVER 

v. 

Lessee  of 
WHITMAN. 


418 


1814. 


STOEVER 

v. 

Lessee  of 
WHITMAN. 


CASES  IN  THE  SUPREME  COURT 

tals,  in  which  it  is  said  that  two  contiguous  lots,  part  of  the 
premises,  after  several  conveyances  mentioned  in  the  said 
recitals,  became  the  property  of  the  said  J.  P.  De  Haas,  also 
that  the  said  De  Haas  became  entitled  to  and  possessed  of 
another  lot,  part  of  the  premises  originally  granted  to  a  cer- 
tain James  M'-Ne'iJf,  and  that  the  said  De  Haas  having  died 
possessed  of  the  said  three  contiguous  lots,  without  having 
paid  any  part  of  the  rents  for  upwards  of  three  years  before 
the  time  of  his  death,  and  his  executors  having  neglected 
or  refused  although  often  required,  to  pay  the  same  after 
his  death,  the  said  F.  Stocver  and  the  other  grantors,  being 
the  true  and  lawful  owners  and  proprietors  of  the  rent 
charges  issuing  out  of  the  said  lots,  did  by  virtue  of  the 
condition  annexed  to  the  several  grants,  re-enter  into  the  said 
lots,  no  sufficient  distress  being  to  be  found  on  the  same, 
and  sell  the  same  at  public  auction  to  the  said  Miley  for  the 
sum  of  35/.  11*.  0</.,  subject  to  a  yearly  ground  rent  of 
3/.  O*.  9|</.  The  counsel  for  the  defendant  contended  that  it 
did  not  appear  by  these  recitals  that  De  Haas  had  more  than  a 
life  estate,  because  it  is  not  said  that  there  was  any  convey- 
ance to  him,  his  heirs  and  assigns.  But  from  the  whole  scope 
of  the  recital  I  think  it  is  plainly  to  be  inferred  that  the  estate 
was  in  fee ;  for  when  we  speak  of  a  man's  having  property 
or  title,  in  general  a  fee  is  intended.  The  recitals  are  not  set 
up  as  a  conveyance,  but  as  evidence  of  a  conveyance.  If  they 
operated  as  a  conveyance,  a  fee  could  not  pass  without  apt 
words ;  but  being  only  designed  to  describe  the  estate  which 
had  passed  by  other  conveyances,  it  is  sufficient  if  such  es- 
tate is  described  with  reasonable  certainty.  It  must  be  con- 
fessed however,  the  description  is  not  so  certain  as  to  be 
conclusive.  The  defendant  might  have  shewn  by  the  convey- 
ance to  De  Haas,  that  his  estate  was  less  than  a  fee  simple. 
The  defendant  also  contended  that  if  the  plaintiff  makes  use 
of  the  recitals  he  must  take  them  altogether,  and  then  it  ap- 
pears on  the  whole,  that  granting  De  Haas  to  have  been 
seized  in  fee,  his  estate  was  defeated  by  the  subsequent  re- 
entry of  the  proprietors  and  sale  to  Miley.  But  to  this  it 
was  answered  and  I  think  justly,  that  those  recitals  are  only 
evidence  and  no  estoppel  to  the  plaintiff,  who  does  not  claim 
under  the  deed  in  which  they  are  contained.  What  a  man 
says  against  himself,  may  be  taken  for  true  against  himself 


OF  PENNSYLVANIA. 


419 


and  those  claiming  under  him;  but  there  is  not  the  same 
force  in  his  declarations  in  his  own  favour.  The  plaintiff 
therefore  was  at  liberty  to  deny  that  the  proprietors  had 
made  a  re-entry  in  the  manner  required  by  law  for  taking 
advantage  of  a  forfeiture.  It  is  to  be  observed  however  that 
as  to  all  but  about  three  acres  and  64  perches,  the  plaintiff 
produced  other  direct  evidence  of  title. 

The  third  exception  is  that  for  three  acres  64  perches, 
part  of  the  premises  in  dispute,  the  plaintiff  shewed  no  deed 
or  any  kind  of  title,  and  therefore  the  Court  should  have 
directed  the  jury  to  find  as  to  so  much  for  the  defendant; 
instead  of  which  they  were  told  they  mightpresume  a  deed, 
if  the  circumstances  of  the  case  would  satisfy  them  that 
there  was  reason  for  such  presumption.  The  charge  of 
the  Court  does  not  appear  to  have  been  precisely  as  the  de- 
fendant states  it.  For  it  was  submitted  to  the  jury,  whether 
these  three  acres  and  64  peiches  were  not  included  in  a  deed 
from  "Jacob  Voght  to  y.  P.  De  Haas.  It  is  indeed  said  by 
the  Court  that  the  jury  have  a  right  to  presume  a  deed,  if 
the  circumstances  of  the  case  will  justify  the  presumption. 
These  expressions  are  very  vague,  and  rather  tend  to  per- 
plex than  to  direct  the  jury.  What  circumstances  will  jus- 
tify the  presumption  of  a  deed,  I  take  to  be  matter  of  law  j 
and  it  is  the  duty  of  the  Court  to  give  an  opinion  whether 
the  facts  proved  will  justify  the  presumption.  This  part  of 
the  case  however  is  not  important,  as  the  jury  did  not  find 
for  the  plaintiffs  for  that  portion  of  the  land. 

The  fourth  exception  is  more  important.  The  defendant 
who  claimed  under  a  re-entry  and  sale  by  the  proprietors  of 
the  town  of  Lebanon^  for  a  forfeiture  incurred  by  the  non- 
payment of  rent,  offered  to  give  evidence  of  a  custom  in  the 
said  town,  to  proceed  in  the  same  course  which  the  proprie- 
tors had  taken  in  this  instance.  This  evidence  the  Court  re- 
jected, and  I  think  very  properly.  Miserable  will  be  our 
condition,  if  property  is  to  depend,  not  on  the  contract  of  the 
parties,  expounded  by  established  principles  of  law,  but  on 
what  is  called  the  custom  of  particular  places,  so  that  we 
may  have  different  law  in  every  town  and  village  of  the 
Commonwealth.  There  are  indeed  cases,  in  which  the  com- 
mon law  of  England  has  not  been  adopted  in  this  country  ; 
and  in  such  cases  it  was  necessary  to  shew  what  the  custom 


1814. 


STOEVER 

v. 
Lessee  of 


420  CASES  IN  THE  SUPREME  COURT 

1814.  had  been  here  ;  but  those  were  general  customs  pervading 
STOEVEH  tne  wn°le  state,  such  as  the  conveyance  of  land  by  deed 
v.  from  a  feme  covert.  What  is  the  true  construction  of  the 
Lessee  of  ground  rent  deeds  in  the  case  before  us,  how  far  our  courts 
rMAN*  will  adopt  the  principle  of  relieving  against  a  forfeiture, 
established  in  the  court  of  chancery  of  England,  or  after  what 
length  of  time  accompanied  by  possession,  it  ought  to  be 
presumed  that  a  re-entry  has  been  legally  made,  although  the 
evidence  may  be  lost,  are  questions  not  now  to  be  decided, 
although  at  a  proper  season  they  will  be  well  worthy  of  se- 
rious consideration.  All  that  is  at  present  to  be  determined, 
is,  whether  the  case  is  to  be  governed  by  the  written  con- 
tract, or  an  extrinsic  custom,  and  of  this  I  have  no  doubt. 
Indeed  the  evidence  proposed  hardly  deserved  the  name  of 
a  custom.  It  only  went  to  shew,  that  the  proprietors  of  Le- 
banon had  always  been  used  to  proceed  in  the  same  manner 
as  in  the  present  instance.  It  appears  that  the  town  had  been 
laid  out  upwards  of  forty  years.  If  the  proprietors  proceed- 
ed legally  it  is  all  very  well.  But  if  they  have  been  in  the 
habit  of  endeavouring  to  dispossess  people  of  their  freeholds 
without  law,  why  should  it  be  sanctioned  ?  Where  they  have 
made  re-entries  and  sales,  and  the  purchasers  have  made 
valuable  improvements  within  the  knowledge  of  the  original 
grantees,  without  their  interference,  much  may  be  said  in 
favour  of  their  proceedings,  and  as  such  cases  arise  they 
will  no  doubt  be  decided  on  equitable  principles.  There  is 
no  danger  of  shaking  ancient  titles.  But  in  the  case  before 
us,  there  can  be  no  inconvenience  from  a  decision  on  the  fair 
construction  of  the  contract.  There  have  been  no  long  ac- 
quiescences,  no  improvements  on  the  faith  of  the  purchaser, 
and  the  title  under  the  forfeiture  is  vested  in  one  of  the 
proprietors  themselves.  I  am  therefore  of  opinion  that  the 
court  was  right  in  rejecting  the  evidence  (a). 

The  remaining  exceptions  are  to  the  deed  from  J.  P.  De 
Haas  the  son,  to  Whitman  the  lessor  of  the  plaintiff.  It  is 
first  objected,  that  the  grantor  being  out  of  possession  could 
not  make  a  legal  transfer  of  the  estate.  But  without  enter- 
ing into  the  consideration  of  the  law  of  England,  it  may  be 

(a)  The  whole  law  in  relation  to  a  re-entry  for  non-payment  of  rent  under  a 
condition  in  a  ground  rent  deed,  may  be  found  in  a  learned  note  to  1  Saund.  287, 
note  16. 


OF  PENNSYLVANIA. 


421 


affirmed  with  certainty  that  the  law  as  held  there  was  never 
adopted  here.  From  the  equality  of  condition  of  persons  in" 
this  country,  there  was  no  danger  of  maintenance  from  the 
interference  of  powerful  individuals,  and  the  abundance  and 
the  cheapness  of  land  rendered  it  necessary  to  admit  of  its 
transfer  with  almost  the  same  facility  as  personal  property. 
For  these  reasons,  when  deeds  and  devises  of  land  have 
been  considered  in  our  courts,  it  has  never  been  made  a 
question  whether  the  grantor  or  devisor  was  in  or  out  of 
possession,  and  to  make  it  now,  would  disturb  what  has  been 
looked  upon  as  settled.  There  is  no  weight  therefore  in  this 
objection.  Another  exception  to  the  deed  to  Whitman  is, 
that  it  did  not  convey  the  legal  estate,  but  was  only  an  agree- 
ment to  convey  at  a  future  time.  But  it  is  immaterial  whe- 
ther it  was  an  immediate  conveyance  of  the  legal  estate  or 
not,  because  at  all  events  it  authorized  Whitman  to  take  the 
possession,  which  is  all  that  is  necessary  to  support  an  eject- 
ment. Last  of  all  it  was  insisted,  on  the  part  of  the  defendant 
that  Whitman  ought  not  to  recover  because  De  Haas  had 
made  a  prior  deed  to  Jacob  Weirech.  But  the  deed  to  Wei- 
rech  was  not  a  conveyance,  but  only  an  agreement  to  convey 
in  case  De  Haas  should  recover  in  an  ejectment  then  de- 
pending. It  does  not  appear  that  Weirech  is  opposed  to  the 
plaintiff's  recovery,  and  I  see  no  reason  why  that  deed 
should  stand  in  his  way.  If  the  title  of  the  defendant  ulti- 
mately proves  good,  neither  Weirech  nor  Whitman  can  re- 
cover. But  if  Whitman  recovers  in  this  suit,  it  will  be  time 
enough  to  settle  the  equity  between  all  parties  interested. 
On  the  whole,  I  am  of  opinion,  that  the  judgment  should  be 
reversed,  and  a  venire  de  novo  awarded. 

YEATES  J.  gave  no  opinion,  not  having  been  present  at 
the  argument. 

BRACKENRIDOE  J.  concurred  with  the  Chief  Justice. 

Judgment  reversed. 


1814. 


STOEVER 

v. 

Lessee  of 
WHITMAN. 


422  CASES  IN  THE  SUPREME  COURT 


HARRIS  and  another  administrators  of  JAMES  HAR- 
RIS  against  HAYES  and  another  administrators  of 
ROBERT  HARRIS.  | 

INERBOU.  : 

was  an  amicable  action  on  the  case  in  the  Corn- 
son  »i  estate  which   _     mon  Pleas  of  Dauphin^  by  the  administrators  of  Robert 

had  come  to  him  .  .          * 

from  his  deceased  Harris  the  plaintiffs  below,  against  the  administrators  of 
fSewithouUnssue,^am^  Harris.  In  February  1  812,  by  agreement  of  attornies 
leaving  a  mother  jn  Operi  court,  all  matters  in  variance  between  the  parties  in 

and  brothers  and  ' 

sisters  of  the  the  cause  were  referred  to  three  persons,  or  any  two  of  them, 
V  Held,  that  the  ex  parte  on  ten  days  notice.  On  the  29th  January  1813,  the 
estate  is  to  go  to  referees  made  a  report  in  favour  of  the  plaintiffs,  which  was 

the  brothers  and    r  * 

sisters,  as  if  the    filed  on  the  2cl  February  following,  read,  and   judgment 
Nisi.     On  the  5th  February  the  defendants  filed  exceptions, 


Itmustbeper-  which  the  Court  afterwards  overruled,  and  the  defendants 

fectly  clear  that  .  .  .        ,  __„  ,      , 

an  arbitration  hastook  this  writ  of  error.  With  the  record  came  up  the  de- 
underTheTcte?0Positions  of  the  referees,  that  the  reference  was  admitted 
sist  March  1806,  before  them  to  be  a  reference  at  common  law,  and  therefore 

or  this  Court  will 

not  reverse  the      they  Were  HOt  SWOm. 

proceeding,  be- 

cause the  provi- 

sions of  that  act        'fhe  case  below,  so  far  as  it  is  material,  was  thus  :   Barnes 

have  not  been  •««<•»          »•  i-     i       •        i         ,  ,     r- 

complied  with.  Hams  the  defendants  intestate,  died  seized  and  possessed  or 
real  and  personal  estate,  leaving  a  widow  and  eight  children. 
Laird  Harris  the  oldest  son,  died  after  him,  and  after  April 
1797,  of  full  age,  intestate  and  without  issue,  leaving  a  mo- 
ther and  seven  brothers  and  sisters.  The  administrators  of 
Robert  Harris  one  of  the  brothers,  claimed  one  seventh  of 
two  thirds  of  the  estate  of  James  Harris,  upon  the  ground 
that  all  Laird  Harris's  proportion  went  to  the  surviving 
brothers  and  sisters  as  if  his  mother  were  dead  ;  and  the  de- 
fendants resisted  it  upon  the  ground  that  this  was  a  casus 
omissus  in  the  intestate  law.  The  referees  reported  in  favour 
of  the  plaintiffs'  claim,  and  the  only  material  exception  rela- 
ted to  this  point  of  law. 

In  this  Court  several  errors  were  assigned,  but  only  two 
pressed.  1.  That  the  arbitration  had  taken  place  under  the 
act  of  21st  March  1806,  by  the  third  section  of  which  the 
plaintiffs  were  bound  to  serve  a  copy  of  the  award  upon  the 
defendants  within  ten  days  after  the  expiration  of  the  term 


OF  PENNSYLVANIA. 

at  which  the  report  had  been  filed ;  and  that  this  had  not 
been  done.     2.  That  the  present  case  was  not  provided  for"" 
by  an  act  of  assembly,  and  therefore  of  Laird  Harris's  part 
of  his  father's  personal  estate,  his  mother  took  a  portion,  or 
the  whole. 

Laird  argued  for  the  plaintiffs  in  error. 
Elder  contra. 

TILGHMAN  C.  J.  This  is  an  amicable  action  entered  on 
the  docket  by  consent,  and  submitted  to  arbitrators.  Many 
exceptions  have  been  taken  to  the  proceedings  of  the  court 
below,  all  of  which  have  been  abandoned  but  two.  1st.  That 
the  judgment  was  not  in  conformity  to  the  act  of  21st  March 
1806,  under  which  the  defendants  contend  the  suit  was  arbi- 
trated. 2d.  That  the  Court  erred  in  their  opinion  as  to  the 
share  to  which  James  Harris  was  entitled,  of  the  real  and 
personal  estate  of  Robert  Harris  deceased. 

1.  As  to  the  first  error  assigned,  it  appears  to  me  on  a  care- 
ful inspection  of  the  record,  that  the  arbitration  was  not  un- 
der the  act  of  21st  of  March  1806,  but  the  old  act  of  1705, 
which  remained  unrepealed.  From  the  words  of  the  submis- 
sion the  case  might  fall  under  the  provision  of  either  of 
these  acts ;  but  the  defendant  having  filed  exceptions  to  the 
award  within  four  days  from  the  commencement  of  the  term, 
to  which  it  was  returned,  it  would  seem  that  the  proceed- 
ings were  understood  by  the  parties  to  be  under  the  act  of 
1705.     At  all  events  it  is  by  no  means  clear,  that  they  were 
not  under  that  act,  which  it  ought  to  be  before  the  Court 
would  reverse  the  judgment  for  that  cause,  because  it  is  an 
objection  which  does  not  go  to  the  merits  of  the  cause.    I  am 
therefore  of  opinion  that  there  is  no  error  in  this  part  of 
the  record. 

2.  On  the  second  point  the  case  stands  thus.     A  man  of 
full  age,  entitled  to  real  and  personal  estate,  all  of  which  came 
to  him  from  his  deceased  father,  dies  intestate  and  without 
issue,  leaving  a  mother  and  brothers  and  sisters  of  the  whole 
blood.    The  plaintiffs  contend  that  his  estate  shall  be  equally 
divided  between  the  brothers  and  sisters   in  exclusion  of 
the  mother.     The  defendants  say  that  it  is  a  casus  omissus, 
unprovided  for  by  any  act  of  assembly.     It  will  depend  on 


423 


1814. 


HARRIS 

et  al. 

v. 

HAYES 
etal. 


424 


CASES  IN  THE  SUPREME  COURT 


1814. 


HARRIS 

etal. 
v. 

HAYES 
etal. 


the  construction  of  the  acts  of  19th  April  1794,  section  7, 
and  of  4th  April  1797,  section  5.  By  the  act  of  April  1 794, 
it  is  provided  that  in  case  a  person  shall  die  seized  or 
possessed  of  real  or  personal  estate  which  came  to  him  from 
the  part  of  his  father,  leaving  no  widow,  nor  lawful  issue, 
nor  father  but  a  mother,  the  said  estate  shall  descend,  pass, 
and  be  enjoyed  or  possessed,  as  if  such  person  had  survived 
his  mother.  In  such  case  then  it  was  the  clear  intent  to  ex- 
clude the  mother  from  any  share  of  her  child's  property ; 
and  the  reason  was  that  she  had  already  been  sufficiently 
provided  for  from  her  husband's  estate.  But  it  is  argued, 
that  although  the  mother  be  excluded,  yet  it  is  not  said  who 
shall  take,  because  the  case  put  in  the  act  does  not  sup- 
pose that  the  intestate  left  brothers  or  sisters.  Granting  for 
argument's  sake  this  to  be  the  case,  we  must  consider  the 
act  of  1797,  which  was  made  for  the  express  purpose  of 
providing  for  the  omissions  of  the  act  of  1794.  By  the  5th 
section  of  the  act  of  1797,  "  When  any  person  shall  die 
"  seized  or  possessed  of  real  or  personal  estate,  leaving  nei- 
"ther  widow  nor  lawful  issue,  father  or  mother,  but  bro- 
"  thers  and  sisters  of  the  whole  blood,  the  estate  shall 
"  descend  to  and  be  vested  in  such  brothers  or  sisters  as  te- 
"  nants  in  common  in  equal  parts."  Now  the  mother  being 
considered  as  dead  by  the  act  of  1 794,  the  case  falls  direct- 
ly within  the  act  of  1797.  The  Court  below  was  right  there- 
fore in  adjudging  that  the  estate  was  to  be  equally  divided 
between  the  brothers  and  sisters  in  exclusion  of  the  mother. 
I  am  of  opinion  upon  the  whole  that  the  judgment  should 
be  affirmed. 

YEATES  J.  The  plaintiffs  in  error  have  insisted,  that  it 
does  not  appear  they  were  duly  notified  of  the  award  of  the 
referees  according  to  the  provisions  of  the  Arbitration  act  of 
21st  March  1806;  to  which  it  is  properly  answered,  that 
the  terms  of  the  submission  equally  apply  to  the  old  Defal- 
cation act  of  17O5,  and  pursue  the  usual  forms  under  that 
law.  At  best  it  is  equivocal,  but  the  conduct  of  the  plaintiffs 
in  error  removes  all  doubt  upon  that  question.  The  deposi- 
tions of  the  referees  taken  in  open  court,  which  have  come 
up  with  the  record,  prove  that  it  was  admitted  before  them 
to  be  a  reference  at  common  law,  and  on  this  ground  they 


OF  PENNSYLVANIA. 

were  not  sworn.  Besides,  the  plaintiffs'  counsel  have  treated 
it  as  a  reference  under  the  defalcation  act ;  they  have  filed " 
their  exceptions  within  the  four  days,  and  argued  them  be- 
fore the  Court.    Upon  this  point  therefore  they  cannot  now 
prevail. 

But  a  more  serious  objection  has  been  urged,  that  it 
appears  by  the  statement  below,  that  the  now  defendants 
claimed  a  sum  to  which  they  were  not  entitled  ;  viz.  one- 
seventh  of  two-third  parts  of  the  personal  estate  of  James 
Harris  senior  deceased,  and  the  like  proportion  of  the  rents 
and  profits  of  his  lands  after  his  death  ;  and  this  necessarily 
leads  to  a  consideration  of  the  law  on  that  subject.  Laird 
Harris  the  eldest  son,  died  after  1797,  and  after  his  father, 
of  full  age,  intestate,  unmarried,  and  without  issue,  leaving 
a  mother  and  seven  brothers  and  sisters  ;  and  the  question 
comes  to  this,  whether  his  mother  is  entitled  to  any  part  of 
his  real  or  personal  estate  derived  under  his  father. 

Under  the  English  statute  of  distributions  of  22d  and  23d 
Car.  2.  c.  1O,  and  before  the  statute  of  1  Jac.  2.  c.  17,  a 
child  dying  intestate,  without  wife,  children  or  father,  the 
mother  took  the  whole  personal  estate  in  exclusion  of  the 
brothers  and  sisters.  1  Wms.  48.,  1  Salk.  251.  This  was 
altered  by  statute,  1  Jac.  2.  c.  17,  and  the  resolutions  under 
it  have  been,  that  where  a  child  has  died  intestate,  without 
issue,  leaving  no  father,  but  a  mother,  wife  and  brother,  the 
wife  took  half  of  the  personal  estate,  and  the  remainder  was 
divided  amongst  the  brothers  and  mother  ;  and  this  too  not- 
withstanding the  statute  says,  dying  intestate  without  wife 
or  children.  2  Wms.  344.,  1  Stra.  71O.,  Gilb.  Equ.  Rep.  190., 
1  Atk.  457.  This  statute  not  extending  to  Pennsylvania^  a 
provision  of  the  like  nature  was  made  by  the  act  ol  assem- 
bly, 22  Geo*  2.,  passed  February  4-th  1748,  9,  as  to  the  per- 
sonal estate,  where  such  child  died  in  his  minority.  By  a 
subsequent  law  of  4  Geo.  3.,  passed  23d  May  1764,  the  same 
provision  is  made,  whether  the  child  died  of  full  age  or  in 
his  or  her  minority  ;  but  as  to  his  land  it  goes  to  his  bro- 
thers and  sisters,  provided  he  dies  in  his  minority,  and  not 
otherwise.  The  legislature  here  went  upon  the  principle, 
that  the  brother  dying  of  full  age  might  devise  his  lands  as 
he  thought  proper;  but  in  such  instance  did  not  think  proper 

VOL.  VI.  3  H 


425 


1814. 


HARRIS 

et  al. 

v. 
HAYES 

et  al. 


426 


CASES  IN  THE  SUPREME  COURT 


1814. 


HAHKIS 

etal. 

v. 

HAYES 
etal. 


to  take  away  the  right  of  the  eldest  brother,  as  heir  at  com- 
mon law. 

I  have  made  these  observations  to  mark  the  progress  of 
the  law  on  this  subject  at  different  periods.  But  all  former 
acts  as  to  descents  are  repealed  by  the  25th  section  of  the 
act  of  19th  April  1794.  3  Smith's  Laws  153.  The  seventh 
section  of  that  law  embraces  this  case  precisely.  One  dying 
leaving  no  widow  nor  lawful  issue,  nor  father  but  a  mother, 
the  mother  shall  hold  the  real  estate  during  life,  and  the  per- 
sonal estate  shall  be  vested  in  her  absolutely,  unless  the 
said  real  and  personal  estates,  or  either  of  them,  came  to  the 
person  so  dying-  seized  or  possessed,  from  the  part  of  his 
or  her  father ;  in  which  case  the  estate  shall  go  as  if  such 
person  had  survived  his  or  her  mother*  The  act  excludes  the 
mother  in  direct  terms,  under  the  circumstances  of  this  case, 
from  all  participation  in  either  the  real  or  personal  property 
of  her  SOD  Laird  Harris,  who  died  intestate  and  deriving 
it  under  his  father  James  Harris.  The  policy  of  this  pro- 
vision was  undoubtedly  founded  on  the  principle,  that 
where  the  mother  has  taken  her  full  thirds  of  the  lands  of 
her  husband  during  life,  and  of  the  personal  property  abso- 
lutely, she  ought  to  have  no  further  claims  on  his  estate. 
The  act  is  silent  as  to  the  manner  in  which  the  estate  shall 
go,  and  bars  the  mother  only.  This  is  provided  for  by  sec- 
tion fifth  of  the  act  of  4th  April  1797,  3  Sm.  Laws  298, 
which  directs  that  it  shall  descend  to  and  be  vested  in  the 
brothers  and  sisters  of  the  whole  blood,  as  tenants  in  com- 
mon in  equal  parts.  It  is  admitted  that  the  said  Laird  Har- 
ris died  after  the  passage  of  this  last  act,  and  it  hence 
follows  irresistibly,  that  the  defendants  in  error  as  the  per- 
sonal representatives  of  Robert  Harris,  supported  their 
claim  before  the  referees,  and  of  course  that  the  second 
error  assigned  by  the  now  plaintiff  also  fails  them.  I  am 
therefore  of  opinion,  that  the  judgment  of  the  Court  of 
Common  Pleas  of  Dauphin  county  be  affirmed. 

BRACKENRIDGE  J.  concurred. 


Judgment  affirmed. 


OF  PENNSYLVANIA.  427 

BAXTER  against  SMITH  and  wife.  1814. 

IN  ERROR.  iMncaster, 

Saturday, 


ERROR  to  Tork  county. 
feme  covert  is 
,       .  r         ,         .   .         ,     ,  .  .    goorf,  unless  her 

Smith  and  wife,  who  claimed  the  premises  in  question  in  husband  express- 


this  suit  under  the  will  of  Andrew  Finley,  brought  eject-       T^ay  be£ 
ment  against  Eleanor  Baxter*  who  claimed  them  under  aferredfrom  cir"., 

0  .  r  cumstances,  or  if 

lease  from  Finley  in  his  life  time.  the  stipaiRtions 

By  the  evidence,  which  came  up  with  a  bill  of  exceptions,^6^,8^"^  e 
it  appeared,  that  on  the  12th  of  February  18O3  Andrerv^rePerforiae^ 

7  .  r>  the  lessor  and 

Finley  leased  the  premises  to  Eleanor  Baxter  and  her  as-  those  claiming 
signs  for  twenty  years,  for  which  she  was  to  board  Finley  bound  by'the* 
and  keep  his  house  without  any  expense  to  him;  and  eachlease- 
party  was  bound  to  performance  in  a  penalty  of  200/.     At 
the  date  of  the  lease,  the  lessee  was  a  married  woman  coha- 
biting with  her  husband,  who  was  not  mentioned  nor  referred 
to  in  the  deed.  He  lived  with  her  some  time  on  the  premises, 
and  died  in  October  1805  in  the  western  country,  where  he 
went  in  quest  of  a   settlement.  His  wife,  according  to  her 
witnesses,  both  before  and  after  his  death,  and  up  to  the 
death  of  Finley  in  May  1807,  performed  the  stipulations  of 
the  lease. 

The  plaintiffs  claimed  under  the  will  of  Finley,  dated  the 
12th  of  March  1806;  and  they  offered  evidence  to  shew 
that  the  defendant's  husband  had  declared  that  he  would 
not  permit  the  lease  to  stand,  that  while  he  was  gone  to  the 
western  country,  she  said  that  she  had  burned  the  lease  in 
the  presence  of  Finley,  and  that  after  her  husband's  death, 
Finley  on  the  4th  of  February  1806  leased  part  of  the  pre- 
mises to  one  Harris  -for  five  years  from  the  1st  of  April 
1806,  at  a  rent  of  ten  pounds  the  first  year  and  fifteen 
pounds  the  other  years,  which  lease  Norris  on  the  same  day 
assigned  to  Mrs.  Baxter.  By  Finley's  will  he  devised  the 
premises  to  Mrs.  Baxter  for  five  years  from  the  date  of  his 
will,  which  time,  and  that  in  the  lease  to  Norris,  had  expir- 
ed before  this  ejectment. 

The  President  of  the  Common  Pleas  charged  the  jury, 
that  the  lease  was  void  because  made  to  a  feme  covert, 
against  whom  no  action  could  be  supported  for  the  non-per- 


428  CASES  IN  THE  SUPREME  COURT 

1814.        formance  of  her  part  of  the  agreement ;  and  the  defendant's 
BAXTER      counsel  tendered  a  bill  of  exceptions. 

SMITH.  Cassat  and  Hopkins  for  the  plaintiff  in  error.  The  charge 

was  erroneous,  because  1.  The  lease  was  binding  on  the  lessor 
and  the  husband  of  the  lessee;  2.  The  lessor  having  gained 
the  whole  consideration,  his  representatives  cannot  avoid  it. 
1.  A  feme  covert  may  take  by  purchase  unless  her  hus- 
band expressly  dissents  ;  Co.  Lift.  3  a.,  1  Com.  Dig.  566,  Ba- 
ron &?  Feme  P.  2.;  and  if  she  may  take  absolutely,  so  she  may 
take  upon  condition,  as  that  she  shall  support  the  grantor 
for  life ;  1  Com.  Dig.  570.,  Bar.  &  Feme  8,  1O. ;  and  if  her 
husband  knows  and  does  not  dissent,  the  condition  binds 
him.  Here  was  evidence  of  assent,  because  the  husband 
lived  on  the  land,  and  enjoyed  the  fruits  of  the  lease ;  and 
the  judge  precluded  the  jury  from  weighing  it,  because  he 
declared  the  lease  void.  If  the  wife  seals  a  bond  in  the  hus- 
band's presence,  and  he  does  not  gainsay  it,  it  binds  him.  2 
Freem.  215.  2.  But  if  there  was  no  assent,  the  wife  confirmed 
it  after  her  husband's  death,  and  performed  her  stipulations  to 
the  lessor.  This  being  the  case,  it  is  against  equity  for  the  de- 
visees of  the  lessor  to  set  aside  the  lease  ;  and  the  reason  of 
the  rule  laid  down  by  the  judge  failed,  because,  although  an 
action  might  not  have  lain  against  the  wife,  yet  in  equity 
the  result  was  the  same,  because  she  had  done  all  that  an 
action  could  have  demanded. 

Kelly  and  Bowie  contra.  The  deed  of  a  feme  covert  is  not 
voidable  like  some  which  an  infant  may  execute,  but  is  ab- 
solutely void  ',  Co.  Lift.  42  £,  note;  and  in  the  present  instance 
.  it  contained  the  ingredient  of  a  penalty,  which  even  in  the 
case  of  an  infant  is  fatal.  Co.  Lift.  172  0,  note.  Her  deed  is 
void,  she  is  incapable  of  consent.  1  Bac.  Abr.  Agreement  A. 
It  is  void  in  some  cases  also,  because  she  is  incapable  of 
performing  the  covenants  it  may  contain,  and  cannot  be 
coerced. 

The  judge,  was  therefore  right  in  his  charge  to  the  jury, 
because  there  was  no  evidence  that  the  lessee  had  performed 
her  stipulations,  and  that  being  the  case,  as  an  action  would 
not  lie  against  her,  the  lessor  and  his  representatives  were 
without  remedy.  But  as  the  whole  evidence  is  brought  up 


OF  PENNSYLVANIA.  429 

by  consent,  this  Court  will  not  reverse  the  judgment  for  an  1814. 

error  in  the  charge,  if  justice  has  been  done.  The  lease  did  BAXTER 
not  bind  the  husband,  because  there   was  evidence  that  he  v. 

dissented;   and  the  taking  a  new  lease  after  her  husband's  SMITH. 
death,  was  an   acknowledgment  by   the  wife   that  the  first 
lease  was  void. 

TILGHMAN  C.  J.  It  was  given  in  charge  by  the  President 
of  the  Court  of  Common  Pleas,  that  the  lease  was  void,  be- 
cause made  to  a  married  woman,  against  whom  no  action 
could  be  supported  for  the  non-performance  of  her  part  of 
the  agreement.  He  took  for  granted  from  the  evidence  that 
the  husband  did  not  assent.  This  broad  position  took  from 
the  jury  all  right  of  considering  the  circumstances  of  the  case; 
and  it  appears  to  me  that  the  president  went  too  far  in  say- 
ing that  the  lease  was  void,  because  no  action  lay  against 
the  woman.  For  granting  that  no  action  lay,  yet  if  in  fact 
all  the  stipulations  on  her  part  were  complied  with,  both 
during  her  husband's  life  and  afterwards,  neither  Finley 
himself  who  had  received  the  benefit  of  those  stipulations, 
nor  the  plaintiffs  who  claim  under  his  will,  would  be  per- 
mitted to  aver  that  the  lease  was  void,  such  averment  being 
against  all  equity  and  good  conscience.  A  married  woman 
may  take  by  purchase  unless  her  husband  expressly  dissents. 
So  that  the  jury  should  have  been  instructed  to  consider,  whe- 
ther from  the  direct  or  circumstantial  evidence,  George  Baxter 
the  defendant's  husband  had  assented  to  this  lease,  or  whe- 
ther the  terms  agreed  to  by  his  wife  had  been  complied  with, 
and  in  either  case,  if  their  opinion  should  be  in  the  affirma- 
tive, the  lease  was  valid  and  the  plaintiffs  ought  not  to  reco- 
ver. I  give  no  opinion  on  the  evidence,  which  is  sent  up  with 
the  record,  that  being  a  matter  not  proper  for  our  considera- 
tion. On  the  whole  I  am  of  opinion  that  there  was  error  in 
the  judge's  charge,  and  therefore  the  judgment  should  be 
reversed,  and  a  venire  facias  de  novo  awarded. 

YEATES  J.  The  authorities  cited  on  the  part  of  the  plain- 
tiff in  error  abundantly  prove,  that  a  deed  made  to  a  mar- 
ried woman  may  take  effect,  provided  her  husband  assents 
thereto,  or  even  in  case  he  does  not  dissent.  It  ought  there- 
fore to  have  been  submitted  to  the  jury,  whether  any  act  on 


430 


CASES  IN  THE  SUPREME  COURT 


1814. 


BAXTER 

v. 
SMITH. 


the  part  of  the  husband,  invalidated  this  demise.  Certain 
"acts  on  his  part  might  subject  him  to  the  stipulations  con- 
tained in  this  lease,  in  equity.  If  the  wife  faithfully  perform- 
ed what  was  incumbent  on  her  to  do  during  her  husband's 
life,  and  acting  under  the  lease  still  continued  to  perform  its 
duties  after  his  death,  it  would  be  such  an  affirmance,  as 
would  estop  Andrew  Finley  and  those  claiming  under  him, 
from  defeating  his  solemn  deed.  But  all  these  facts  were 
withdrawn  from  the  consideration  of  the  jury,  by  the  Court's 
declaration,  that  the  lease  was  absolutely  void.  I  think  there- 
fore, that  the  cause  was  not  decided  on  its  correct  merits,  that 
the  judgment  should  be  reversed,  and  a  venire  facias  denovo 
awarded. 


BRACKENRIDGE  J.  concurred. 


Judgment  reversed.. 


Lancaster, 
Saturday, 
May  28. 


is  evidence  against    JL 
the  defendant,  al 


SHAEFFER  against  KREITZER. 

IN  ERROR. 

was  a  writ  of  error  to  the    Common  Pleas  of 
county. 


Ipw394< 
Iwh  15 
31  196 
71  225 
82  124 
102  334 


though  no  judg-       In  the  Court  below,  the  action  was  an  ejectment  for  about 
entere^if  htnhastweuty  acres  of  land  in  Tulpehocken  and  Bethel  townships. 

acquiesced  in  it 
by  paying  the 

costs  and  deliver-      Upon  the  trial  of  the  cause,  Kreitzer  the  defendant  offer- 

sion!  e  ^          ed  i°  evidence  the  record  of  a  former  trial  and  verdict  in 

Upon  an  appeal  an  ejectment  for  the  same  land,  and  upon  the  same  title. 

from  the  award  J 

of  arbitrators,  it  is  and  between  parties  under  whom  the  present  plaintiff  and 
award  to  the  jury,  defendant  respectively  claimed ;  having  first  shewn,  that  the 
defendant  in  that  suit,  under  whom  the  present  plaintiff 
claimed,  had  paid  the  costs,  and  delivered  up  the  possession 
according  to  the  verdict  to  the  plaintiff  in  that  suit,  under 
whom  the  present  defendant  claimed.  The  counsel  of  Shaef- 
fer  objected  to  this  evidence,  because  no  judgment  had  been 
rendered  on  the  verdict ;  but  the  Court  admitted  it. 

The  defendant's  counsel  further  offered  in  evidence  the 
report  of  arbitrators  in  this  cause  from  which  there  had 
been  an  appeal.  To  this  also  the  plaintiff  objected,  but  the 
Court  admitted  it,  being  of  opinion  that  the  defendant  had 


OF  PENNSYLVANIA.  431 

a  right  to  read  the  whole  record,  and  of  course  the  report ;  1814. 

at  the  same  time  instructing  the  jury  to  disregard  the  re-  SHAEFFER 

port,  which  was  entitled  to  no  weight  whatever.  v" 

A  bill  of  exceptions  was  tendered,  upon  which  the  points  k-RElTZEB« 
were  now  argued  in  this  court. 

Evans  and  C.  Smith  for  the  plaintiff  in  error. 

It  is  a  general  rule  that  a  verdict  without  judgment  is  no 
evidence,  because  it  may  happen  that  the  judgment  was  ar- 
rested or  a  new  trial  granted.  Montgomery  v.  Clark  (a), 
1  Peak  32.  The  only  exception  is  where  the  verdict  is 
introduced  to  shew  a  trial,  in  order  to  prove  what  a  deceas- 
ed witness  swore.  Pitton  v.  Walter  (£),  Fisher  v.  Kitchen- 
man  (c).  But  here  it  was  offered  as  evidence  of  title.  Our 
own  legislature,  in  giving  more  effect  to  the  proceedings  in 
ejectment  than  the  common  law,  confines  the  effect  to  cases 
of  two  verdicts  and  judgments.  Act  13th  April,  1807, 
4  Smith's  Laws  477* 

The  award  was  no  evidence,  because  it  was  the  very  thing 
appealed  from.  As  to  its  being  part  of  the  record,  that  prin- 
ciple would  authorize  the  reading  of  a  verdict  that  had  been 
set  aside,  an  attempt  that  was  frustrated  in  Ridgely  v.  Spen- 
ser (cT).  It  cannot  have  the  least  weight,  because  then  it 
might  throw  the  onus  upon  the  opposite  party  ;  and  if  it  has 
no  weight,  it  ought  not  to  be  read. 

Hopkins  contra.  The  verdict  was  evidence  for  two  rea- 
sons ;  first,  to  account  for  the  defendant's  possession,  and 
the  payment  of  costs  in  the  former  suit.  This  brings  the 
case  to  the  rule  in  Pitton  v.  Walter.  The  second  reason  is, 
because  it  was  a  verdict  acquiesced  in,  which  is  within  the 
rule  of  a  verdict  followed  by  a  judgment.  The  entry  of  a 
judgment  was  the  mere  omission  of  the  clerk.  There  is 
much  confusion  as  to  the  point  when  posteas  are  or  are  not 
evidence.  They  are  or  are  not  so,  according  to  the  thing 
to  be  proved.  Kyp  v.  Brigham  (e}.  When  the  inference 
which  the  want  of  a  judgment  creates,  is  rebutted  by  the 
acts  of  the  party  against  whom  the  verdict  passed,  the  ver- 
dict is  as  good  as  the  judgment. 

(a)  BuU.  JV.  P.  234.  (c)  Mod.  451.  (*)  7  Johns.  170. 

(*)  1  Stra.  162.  (<l)  2  Sinn.  70. 


432 


CASES  IN  THE  SUPREME  COURT 


1814.  The  jury  were  instructed   to  disregard  the  award,  and 

SHAEFFER    therefore  it  must  be  presumed  that  it  had  no  effect,  or  it 

v.  would  have  been  corrected  by  the  Court  below  on  a  motion 

KREITZER.    for  a  new  trial.     The  award  has  the  effect  of  a  judgment 

until  reversed.    It  is  not  reversed  by  appeal,  and  being  a  part 

of  the  record,  the  defendant  was  at  least  entitled  to  read  it. 

TILGHMAN  C.  J.  Several  cases  have  been  cited  by  the 
plaintiff  in  error,  to  shew  that  the  postea,  containing  the 
record  of  a  verdict,  cannot  be  given  in  evidence  without 
producing  the  judgment ;  and  the  reason  assigned  in  all  these 
cases  is,  because  without  producing  the  whole  record,  it 
cannot  appear  that  the  judgment  was  not  arrested,  or  a  new 
trial  ordered  by  the  Court  in  bank.  In  our  Courts  of  Com- 
mon Pleas  there  is  no  postea,  the  whole  proceedings  being 
in  bank.  But  I  agree  that  while  the  cause  remains  undecid- 
ed, a  verdict  in  a  former  ejectment  cannot  be  received  as 
evidence  of  title,  because  perhaps  the  verdict  may  be  set 
aside,  and  the  judgment  arrested.  But  the  present  case  is 
different.  No  judgment  has  been  entered,  but  the  defendant 
shewed  his  acquiescence  in  the  verdict  by  the  payment  of 
costs  and  delivery  of  possession.  No  case  exactly  like  it  has 
occurred,  but  it  falls  within  the  principle  of  a  verdict  and 
judgment.  It  appears  by  the  acts  of  the  defendant  that  no 
objection  was  made  to  the  verdict.  There  was  no  occasion 
to  enter  judgment,  because  the  fruits  of  a  judgment,  (the 
costs  of  suit  and  possession  of  the  land)  were  yielded  by 
the  defendant  and  enjoyed  by  the  plaintiff.  I  am  therefore 
of  opinion  that  the  former  verdict  was  properly  admitted  in 
evidence. 

The  second  error  assigned  in  this  cause  is,  that  the  Court 
of  Common  Pleas  admitted  the  report  of  the  arbitrators  to 
be  read  to  the  jury,  telling  them  at  the  same  time  that  they 
were  to  pay  no  regard  to  it. 

It  was  the  opinion  of  the  Court  of  Common  Pleas,  that 
the  defendant  had  a  right  to  read  the  whole  record,  how- 
ever unnecessary  it  might  be  to  the  explanation  of  the  issue 
which  the  jury  were  trying.  It  may  seem  at  first  view  to  be 
a  matter  not  worth  contending  for,  because  the  jury  were 
told,  that  the  report  ought  not  to  have  the  least  weight  as 
evidence  of  title.  But  to  those  who  have  had  experience  in 


OF  PENNSYLVANIA.  433 

jury  trials,  it  will  be  evident  that  the  principle  involved  in        1814. 
this  point  is  of  considerable  importance.     Impressions  once    SHAEFFER 
made  are  not  easily  erased.    And  when  the  jury  have  been  v. 

permitted  to  hear,  that  men  for  whose  characters  they  en-  KREITZER. 
tertain  a  respect,  have  decided  in  a  certain  way,  it  will  be 
very  apt  to  influence  their  own  decision,  in  spite  of  all  the 
caution  they  may  receive  from  the  Court.  Indeed  it  is  in- 
comprehensible why  either  party  should  be  permitted  to 
read  papers  not  material  to  the  issue,  because  even  if  they 
had  no  influence  on  the  minds  of  the  jury,  it  would  be  a 
waste  of  time.  The  reason  which  decided  the  opinion  of  the 
Court  below  was,  that  either  party  has  a  right  to  read  the 
whole  record,  for  the  same  reason  that  part  of  a  record 
might  be  read,  that  shews  a  former  verdict  which  had 
been  set  aside  by  the  Court.  But  on  that  point  this  Court 
decided  to  the  contrary  in  the  case  of  Ridgely  et  al.  v. 
Spenser,  2  Binney  70,  where  the  very  same  attempt  was 
made  in  the  Court  below,  on  the  very  same  principle,  and 
with  the  same  success  as  in  the  present  case.  The  act  "re- 
"  gulating  arbitrations,"  which  permits  either  party  to  carry 
the  action  before  arbitrators  without  the  consent  of  the 
other,  would  be  a  violation  of  the  constitution  which  secures 
to  the  citizens  of  Pennsylvania  the  right  of  trial  by  jury, 
were  it  not  that  it  gave  an  appeal  from  the  report  of  the 
arbitrators  to  the  Court  in  which  the  action  was  commenc- 
ed. When  the  suit  is  restored  to  the  jurisdiction  of  the 
Court,  a  trial  is  to  be  had  in  the  same  manner  as  if  it  had 
never  been  submitted  to  any  other  tribunal;  and  the  jury 
are  to  decide  on  the  evidence  offered  them,  tending  to  the 
support  of  the  issue  joined.  As  the  report  of  the  arbitrators 
has  nothing  to  do  with  this  issue,  it  ought  not  to  be  read, 
and  no  person  could  ever  wish  to  read  it,  but  with  a  view 
of  influencing  the  minds  of  the  jury  by  improper  motives. 
In  order  therefore  to  give  the  appellant  the  full  benefit  of 
his  appeal  according  to  the  true  intent  of  the  act  of  assem- 
bly, it  is  necessary  to  preclude  all  opportunity  of  introduce 
ing  the  report  appealed  from.  The  point  has  never  been 
formally  brought  before  the  Court,  but  it  has  been  the 
practice  at  Nisi  Prius  not  to  permit  the  report  to  be  read.  I 
am  of  opinion,  that  it  ought  not  to  have  been  Admitted  on 
VOL.  VI.  3  I 


434  CASES  IN  THE  SUPREME  COURT 

1814.       this  trial,  and  therefore  the  judgment  should  be  reversed, 
SHAEFFER    anc*  a  venire  facias  de  novo  awarded. 

KREITZER.  YEATES  J.  The  cases  cited  shew  that  a  verdict  without 
•  a  judgment  entered  thereon,  is  or  is  not  evidence  according 
to  the  nature  of  the  thing  it  is  produced  to  prove.  It  is  no 
evidence  of  the  fact  having  been  legally  decided ;  for  the 
judgment  may  have  been  arrested  or  a  new  trial  granted. 
But  it  is  good  evidence  to  shew  that  a  trial  has  been  had 
between  the  same  parties,  so  as  to  introduce  an  account  of 
what  a  witness,  who  is  since  dead,  swore  on  that  trial. 
1  Peahens  Ev.  50.  Here  a  former  ejectment  was  brought  for 
the  same  land,  by  persons  to  whom  the  present  parties  are 
privies,  and  the  verdict  given  therein  was  offered  to  intro- 
duce the  collateral  fact  of  payment  of  the  costs  of  that  suit, 
and  to  account  for  the  defendant  in  this  action  coming  into 
possession,  and  of  the  plaintiff's  acquiescence  in  the  adverse 
title.  It  is  similar  in  principle  to  letting  in  the  testimony  of 
the  witness. 

But  I  regard  the  report  of  the  arbitrators  in  a  different 
light.  It  was  admitted  on  the  ground  of  its  being  part  of  the 
record;  but  the  jury  were  instructed  to  disregard  it,  and  to 
judge  for  themselves,  independently  of  the  opinion  of  the 
arbitrators.  As  to  its  being  part  of  the  record,  the  same 
manoeuvre  was  practised  in  Ridgely  et  al.  v.  Spenser,  2  Binn. 
70,  but  did  not  prevail.  The  observation  of  the  Court  is  an 
unanswerable  objection  to  its  being  read  in  evidence.  Why 
should  it  have  been  admitted,  if  it  was  to  have  no  weight  ? 
Can  an  award  appealed  from,  possibly  conduce  to  establish 
its  own  merits  ?  The  most  irrelevant  testimony  would  go  to 
the  jury  on  the  same  principle.  Such  a  practice  would  be 
attended  with  the  most  injurious  consequences,  and  in  fact 
the  reports  of  arbitrators  under  the  last  arbitration  system, 
which  have  been  appealed  from,  have  often  been  rejected. 

I  concur  in  opinion  that  the  judgment  be  reversed,  and  a 
new  trial  awarded. 

BRACKENRIDGE  J.  concurred  with  the  Chief  Justice. 

Judgment  reversed. 


OF  PENNSYLVANIA.  435 

SHALLER  and  another,  administrators  of  SHALLER, 

.    •  T,  1814. 

against  BRAND. 


J,ancaster, 

IN  ERROR.  Saturday, 

May  28. 

THIS  was  a  writ  of  error  to  the  Common  Pleas  of  Dan-    The  certificate 
,  .  of  an  acknowledg- 

phin  COUnty.  ment  by  husband 

and  wife,  that  an 
..    .    ,  i         j      •          indenture  was 

In  that  court  it  was  an  action  or  debt  upon  a  bond  given  tntiract  an  i  deed, 

by  Adam  Shatter  the  intestate,  to  Christian  Brand  the  plain-  *J"0lbe'i.^co'rded" 

tiff  below,  for  30/.,  dated  in  the  year  1783,  and  payable  on a« such,  "she the 

Tii  '  i  r   i  •    i         i       ',       i  "  said  (wife)  being 

the  1st  Maij  1793.  The  consideration  of  this  bond  and  others, "<,ffuiiage,  sepa- 

was  a  tract  of  land  sold  by  Brand  to  Shatter,  in  June  1 78 1 , "  Jvomhl'r  said"* 


and  conveyed  in  1783.  "husband  exam- 

r»-.i  i  T->  i  •      T-N  ;      "  ineil,  and  the 

1  he  suit  was  brought  to  December  1798,  and  in  December  «  fuii  contents 

1800,  an  agreement  was  filed  for  "judgment,  but  no  execu-  "  ^^J^ai 
"tion  to  issue,  until  the  title  of  the  land  for  which  the  bond  "  consenting 

iii  r  11         i          i    •      •  iV  «    A  i      "  thereto,"  is 

"  was  given,  should  be  perfected  by  the  plaintiff.     At  a  sub-good. 


sequent  day  the  plaintiff  took  out  execution,  which  the 

set  aside.  His  counsel  then  moved  for  leave  to  take  out  ex-  panied  the  posses- 
....  rii  •        i          -11      si°n  thirty  years, 

ecution,  which  the  court  refused  ;  but  permitted  a  trial  under  is  evidence,  with- 


the  judgment,  to  ascertain  whether  the  title  had  been  per-  ™*  P"      of  lts 


exec 

fected.  A  judgment, 

„-,.        .  ,  i,,  •  ,  i-  •    upon  which  it  is 

The  title  was  brought  down  without  dispute  to  a  certain  agreed  that  no 

Valentine  Dillebaugh  the  elder,  who,  according  to  the  P^^in-f^y^J,"",8^11 
tiff's  allegation,  by  his  last  will  dated  the  3d  September  1777,piaintift'has  per- 

,.,,,,.  ,  ,  .  ,T   ,  ,  fected  the  title  to 

devised  the  land  in  equal  parts  to  his  sons    Valentine  and  certain  land  for 
Christian,  and  to  his  daughter  Catharine  in  fee.  which  the  bond 

that  supported 

Valentine  the  younger  and  Christian  Dillebaugh,  on  the  the  judgment  was 
26th  February  1778,  conveyed  to  Tost  Brand,  who  mar-ferest.ca' 
ried  Catharine  the  daughter;  the  wife  of  Valentine  not  join-  .  If  the  same  wri- 

°  J  ting  that  admits 

ing  in  the  conveyance.  the  survivorship 

Tost  Brand  and  Catharine  his  wife,  on  the  1st  June  1782,  i,er  being's'tiii 
conveyed  to  Christian  Brand.    This  deed  was  acknovvledp;- a.llv<;'assei'tsth!Jt 

•  °    she  lias  released 

ed  on  the  29th  August  1808,  before  a  judge  of  the  Com-herdower, and  it 

m  r        r\        .  7  •  i  ,  ,  .  . /-  is  used  as  evidence 

mon  rleas  tor  Dauphin  county,  who  endorsed  his  certificate  at  -,1^  ;t  js  evi- 
on  the  deed  that  the  grantors  personally  appeared  before (le"ce  V1?1  the. 

J        r  r  right  ot  dower  11 

him,   "and  severally  acknowledged  the  said  indenture  as  not  outstanding. 
"  their  act  and  deed,  and  desired  that  the  same  might  be 
"  recorded  as  such ;  she  the  said  Catharine  being  of  full  age, 
"  separate  and  apart  from  her  said  husband  by  me  examin- 


436 


CASES  IN  THE  SUPREME  COURT 


1814. 


SHALLER 
etal. 

v. 
BRAND. 


"  ed,  and  the  full  contents  made  known  to  her,  voluntarily 
~  "  consenting  thereto" 

Christian  Brand  and  Feronica  his  wife,  in  the  year  1783, 
conveyed  to  Adam  Shatter  in  fee,  and  acknowledged  the 
deed  on  the  20th  April  18O8. 

The  first  question  upon  the  trial,  which  took  place  in  De- 
cember 1812,  arose  upon  the  proof  of  Valentine  Dillebaugh's 
will.  It  was  written  in  German,  \\  ith  the  signatures  of  both 
Valentine  and  his  wife,  and  subscribed  by  six  witnesses  ;  but 
did  not  appear  to  have  been  ever  exhibited  for  probate. 
Notice  had  been  served  on  the  defendant  below  and  his 
counsel  in  1805,  to  produce  certain  title  papers  on  the  trial, 
and  generally  all  papers  relating  to  the  lands  j  but  this  will 
was  not  particularly  mentioned.  Under  the  notice  certain 
papers  were  received  in  January  1808,  by  Mr.  Elder  the 
counsel  of  Brand,  and  a  memorandum  was  taken  of  them, 
but  it  did  not  include  the  will.  Mr.  Elder  swore  that  he 
could  not  speak  with  certainty  as  to  the  will,  but  thought 
he  got  it  then  or  sometime  after  from  Shatters  counsel. 
The  counsel  of  the  defendants  swore,  that  they  had  not  seen 
the  will  until  the  trial  of  the  cause.  The  deed  from  Brand 
to  Shatter  in  1783,  recited  that  the  grantor's  title  was  de- 
rived under  this  will ;  and  the  deed  from  Valentine  and 
Christian  Dillebaugh  to  Tost  Brand,  recited  that  the  father 
had  devised  the  premises  to  his  three  children  equally,  by 
a  will  duly  proved  and  recorded  in  the  county  of  Lancaster  ; 
but  no  such  will  was  found  there. 

The  counsel  for  the  defendants  objected  to  the  reading 
of  this  paper,  but  the  Court  admitted  it ;  and  in  conclusion 
charged  the  jury,  that  proof  of  the  execution  could  be  dis- 
pensed with  only  on  the  ground,  that  it  had  accompanied 
the  possession  for  more  than  thirty  years,  which  was  a  fact 
for  them  to  determine  ;  and  if  it  had  not  gone  with  the  pos- 
session, they  should  pay  no  attention  to  it. 

The  next  question  arose  upon  the  certificate  of  acknow- 
ledgment by  Tout  Brand  and  Catharine  his  wife,  which  the 
defendant's  counsel  contended  was  defective  as  to  the  wife, 
and  therefore  did  not  pass  her  estate  or  dower.  But  the 
judge  charged  to  the  contrary. 

A  third  was  in  relation  to  the  dower  of  Anne,  the  wife  of 
Valentine  Diltebaugh  the  younger.  The  fact  of  her  having 


OF  PENNSYLVANIA. 

survived  her  husband,  and  being  still  alive,  appeared  from 
a  memorandum  in  the  handwriting  of  Mr.  Elder  the  plain-"" 
tiff's  attorney,  which  stated  further  that  she  had  released 
her  dower.  The  judge  charged  that  the  whole  must  be 
taken  together,  and  if  so,  it  shewed  that  the  dower  was  not 
outstanding. 

The  last  question  related  to  interest  on  the  judgment, 
which  was  objected  toby  the  defendants,  because  the  judg- 
ment was  conditional,  and  it  had  been  the  plaintiff's  fault  that 
the  title  was  not  sooner  made  perfect.  But  the  judge  charged 
the  jury  that  interest  was  due  upon  the  judgment,  because 
it  was  absolute,  and  the  condition  applied  merely  to  the 
execution ;  and  because  the  defendants  had  received  the  pro- 
fits of  the  lands,  and  had  never  made  a  tender  of  the  mo- 
ney nor  kept  it  unemployed. 

On  all  these  points  bills  of  exceptions  were  tendered  and 
sealed.  The  exceptions  were  argued  in  this  Court  by  FisheF 
and  Montgomery  for  the  plaintiffs  in  error,  and  by  Elder  and 
Hopkins  contra. 

TILGHMAN  C.  J.  delivered  his  opinion  upon  the  several 
exceptions  as  follows  : 

1.  The  defendant  contends  that  the  plaintiff  was  not 
entitled  to  interest  on  the  bond  subsequent  to  the  entry  of 
the  judgment,  because  the  judgment  was  conditional,  or  in 
the  nature  of  an  interlocutory  judgment,  and  in  its  nature 
showed  an  intention  to  suspend  the  interest,  until  the  title 
was  completed.  But  the  judgment  was  neither  conditional 
nor  interlocutory.  It  was  absolute,  and  the  condition  or  re- 
straint was  annexed  only  to  the  execution.  Whenever  the 
title  was  perfected,  the  plaintiff  had  a  right  to  take  out  exe- 
cution, and  the  judgment  being  for  the  penalty  of  the  bond, 
the  plaintiff  might  cover  under  it  his  -whole  interest  and  costs. 
The  jury  did  not  give  interest  from  the  time  of  the  judg- 
ment on  the  accumulated  sum  of  principal  and  interest  then 
due  according  to  our  act  of  assembly,  so  that  the  defendant 
has  no  reason  to  complain  of  the  least  hardship,  considering 
his  case  on  equitable  grounds.  He  was  in  possession  of  the 
land,  the  profits  of  which  were  equal  to  the  interest  of  the 
money,  and  there  was  no  evidence  of  his  having  kept  the 
money  lying  dead  for  a  single  moment. 


437 


1814. 


SMALLER 
et  al. 

v. 
BRAND. 


438 


CASES  IN  THE  SUPREME  COURT 


1814. 


SMALLER 
etal. 

v. 
BRAND. 


2.  The  next  question  is  on  the  acknowledgment  of  a  deed 
from  Tost  Brand  and  Catharine  his  wife  to  Christian  Brand. 
The  act  of  24th  February  1 770,  on  which  this  point  arises, 
directs  that  the  judge  who  takes  the  acknowledgment,  shall 
examine  the  wife  separate  and  apart  from  her  husband,  and 
shall  read  or  otherwise  make  known  to  her,  the  full  contents 
of  the  deed  ;  and  if  upon  such  separate  examination  she  shall 
declare,  that  she  did  voluntarily  and  of  her  own   free  will 
and  accord  seal,  and  as  her  act  and  deed  deliver  the  said 
deed,  without  coercion  or  compulsion  of  her  husband,  then 
the  said  deed  shall  be  good  and  valid.     It  is  insisted  by  the 
counsel  for  the  defendant,  that  the  form  prescribed  by  the 
law  should  be  strictly  pursued  ;  but  such  has  never  been  the 
opinion  of  this  Court.     We  have  always  declared,   that  it 
was  sufficient  if  the  law  was  substantially    complied  with ; 
and  on  any  other  principle  of  construction,  the  peace  of  the 
country  would  be  seriously  affected,  as   the  certificates  of 
acknowledgments  of  deeds  have  generally  been  drawn  by 
persons  who  were  either    ignorant  of  or  disregarded  the 
words  of  the  act  of  assembly.     The  law  must  be  complied 
with,  but  in  construing  it  we  shall  always  be  inclined  to  sup- 
pose a  fair  conveyance  if  possible.  Now  it  is  here  said,  that 
the  wife  was  examined  apart  from  her  husband,  that  the 
contents   of  the  deed  were  made  known  to    her,  and  she 
voluntarily  consented.     It  is  not  straining  the  expressions 
"  voluntarily  consenting  thereto"  too   far  to  say,  that  they 
imply,  she  declared  that  she  executed  the  deed  voluntarily, 
and  that  is  sufficient ;  for  if  the  execution  was  voluntary,  it 
was  without  coercion  or  compulsion.     I  am  clearly  of  opi- 
nion therefore  that  by  this  deed,  the  estate  of  the  wife  was 
legally  conveyed. 

3.  The  third  question  is  on  an  outstanding  title  of  dower 
in  Anne  Dillebaugh,  supposed  to  be  living  in  Canada.  She  is 
the  widow  of  Valentine  Dillebaugh  jr.,  who  conveyed  his 
interest  in  this  bond  to  Tost  Brand,  the  26th  February  1778. 
There  was  no  proof  of  this  woman's  being  living  or  having 
any  right  of  dower,  except  by  a  memorandum  in  the  hand- 
writing of  Mr.  Elder,  in  which  same  memorandum  it  is 
also  mentioned,  that  she  had  released  her  right.  The  Court 
of  Common  Pleas  were  of  opinion,  that  the  contents  of  this 
paper  must  be  taken  altogether,  and  in  this  they  were  cer- 


OF  PENNSYLVANIA. 


439 


talnly  right,  so  that  although  it  appeared,  that  she  once  had 
a  right  of  dower,  yet  upon  the  whole  it  appeared  that  she 
had  no  right  because  she  had  released. 

4.  The  last  objection  is  to  the  opinion  of  the  Court  in  ad- 
mitting as  evidence  a  paper  purporting  to  be  the  will  of 
Valentine  Dillebaugh  the  elder,  bearing  date  the  3d  Septem- 
ber 1777,  by  which  he  devised  the  land  sold  by  Christian 
Brand  to  Adam  Shaller,  to  his  sons  Valentine  and  Christian 
and  his  daughter  Catharine  equally  in  fee.  There  was  no 
proof  of  this  will,  but  it  was  admitted  in  evidence  on  the 
ground  of  its  being  a  writing  which  had  accompanied  the 
possession  of  the  land  for  upwards  of  thirty  years.  There  is 
no  doubt  but  that  ancient  deeds  under  which  the  possession 
has  gone  for  thirty  years,  are  evidence  without  proof  of  their 
execution,  and  it  was  decided  in  Jackson  v.  Blanshan,  3 
Johns.  292,  that  in  similar  circumstances  a  will  also  was 
evidence. 

In  that  case  the  Court  differed  in  opinion,  as  to  the  time 
necessary  to  bring  a  will  within  the  rule  of  an  ancient  paper. 
Spencer  thought  that  upwards  of  thirty  years  having  elaps- 
ed from  the  date  of  the  will,  and  possession  having  been 
held  under  it  twenty-seven  years,  it  might  be  read  in  evi- 
dence without  proof.  But  Kent  Chief  Justice,  and  a  majority 
of  the  Court  were  of  opinion  that  it  required  thirty  years 
possession ;  and  I  agree  with  them,  because  although  the 
antiquity  of  the  writing  affords  some  evidence  in  its  fa- 
vour, yet  the  main  ingredient  is  possession.  Both  however 
are  necessary  to  raise  that  presumption  which  will  justify 
the  Court  in  departing  from  the  usual  rule,  which  requires 
the  production  of  the  subscribing  witnesses  or  proof  of  their 
handwriting,  after  accounting  for  their  absence.  This  will 
bore  date  thirty-five  years  before  it  was  offered  in  evidence, 
the  testator  had  been  dead  upwards  of  thirty-four  years,  ar- 
ticles of  agreement  for  sale  to  the  defendant  had  been  exe- 
cuted by  the  plaintiff,  who  claimed  under  the  will,  upwards 
of  thirty  years,  and  these  articles  had  been  followed  by  an 
actual  conveyance  the  year  next  succeeding,  so  that  posses- 
sion had  probably  been  held  under  this  will  between  thirty 
and  thirty-four  years.  The  proof  was  not  positive,  that  the 
will  had  been  among  the  title  papers  delivered  to  the  defen- 
dant, nor  was  it  ascertained  with  certainty  at  what  time  the 


1814. 


SHALLEK 
etal. 

v. 
BRAND. 


440 


CASES  IN  THE  SUPREME  COURT 


1814. 


SHALLER 
etal. 

v. 
BRAND. 


title  papers  were  put  into  the  hands  of  the  defendant.  The 
Court  thought,  that  sufficient  evidence  had  been  given  to 
authorize  them  to  permit  the  will  to  be  read  to  the  jury ; 
and  they  permitted  it  under  this  restriction,  that  unless  the 
jury  should  be  of  opinion  that  possession  had  gone  according 
to  the  will  for  upwards  of  thirty  years,  they  should  pay  no 
regard  to  it.  The  Court  had  a  right  to  judge  upon  the 
previous  matter  themselves  ;  but  I  do  not  see  that  they  did 
wrong  in  permitting  the  jury  to  judge  of  it,  a  reasonable 
foundation  having  been  first  laid.  And  it  appears  that  such 
foundation  was  laid,  both  from  the  strong  circumstance  of 
possession  held  by  the  defendant  himself,  and  from  recitals 
in  ancient  deeds  deducing  title  under  this  will.  The  testator 
left  three  children,  two  sons  Valentine  and  Christian,  and 
one  daughter  Catharine  the  wife  of  Tost  Brand.  The  two 
sons  conveyed  their  interest  to  Tost  Brand,  by  deed  dated 
6th  February  1798,  in  which  it  is  recited,  that  their  father 
devised  the  premises  to  his  three  children  equally  by  a  will 
duly  proved  and  recorded  in  the  county  of  Lancaster.  But 
no  such  will  has  been  found  on  record,  so  that  there  is  a 
mistake  in  that  part  of  the  recital.  The  deed  from  the  plain- 
tiff to  the  defendant  also  recites  the  title  as  derived  from  the 
same  will.  These  are  very  strong  circumstances.  When  all 
persons  interested  in  the  estate,  declared  that  the  will  was 
made,  particularly  when  the  eldest  son  of  the  testator  says 
so,  who  would  have  been  entitled  to  one  half  of  the  land  if 
his  father  had  died  intestate,  there  was  surely  a  good  foun- 
dation for  suffering  the  paper  to  go  to  the  jury  in  the  man- 
ner that  it  went.  Upon  the  whole  I  am  of  opinion  that  there 
is  no  error  in  this  record,  and  therefore  the  judgment  should 
be  affirmed. 

YEATES  J.  I  fully  assent  to  the  correctness  of  the  deci- 
sions on  all  the  points  disputed  in  this  cause,  except  a  single 
one  which  I  shall  consider  in  the  last  instance. 

It  has  been  contended,  that  the  deed  from  Tost  Brand 
and  Catharine  his  wife  to  Christian  Brand,  was  not  effec- 
tual to  convey  the  interest  of  the  wife  in  these  lands, by  rea- 
son of  a  radical  defect  in  the  acknowledgment.  If  the  will 
of  her  father  Valentine  Dillebaugh  was  established,  she  was 
entitled  to  one  undivided  third  part  of  the  lands  afterwards 


OF  PENNSYLVANIA. 


441 


sold  to  Adam  Shatter  ;  but  if  her  father  died  intestate,  she  be- 
came entitled  in  her  own  right  to  one  undivided  fourth  part," 
her  eldest  brother  taking  two  shares  under  the  law  regulat- 
ing descents  at  the  time  of  her  father's  death.  It  is  objected, 
that  the  words  of  the  acknowledgment  by  the  feme,  do  not 
pursue  the  language  of  the  act  of  24th  February  177O,  but 
materially  vary  therefrom.  The  acknowledgment  specifies, 
rt  that  she  was  examined  apart  from  her  husband,  being  of 
"  full  age,  the  full  contents  of  the  deed  made  known  to  her, 
'*  and  that  she  voluntarily  consented  thereto."  But  the  words 
of  the  act  are,  that  "  upon  her  separate  examination  she  shall 
"  declare,  that  she  did  voluntarily,  and  of  her  own  free  will 
"  and  accord,  seal  and  as  her  act  and  deed  deliver  the  said 
"  deed  of  conveyance,  without  any  coercion  or  compulsion  of 
"  her  said  husband." 

The  question  on  acknowledgments  of  married  women,  has 
come  before  this  Court  in  three  instances.  Lessee  of  Watxon 
and  wife  v.  Bailey  et  al.  1  Binn.  470.,  Kirk  v.  Dean,  2 
Binn.  35O.,  and  M'-Intire's  Lessee  v.  Ward,  5  Binn.  296.  In 
the  first  case  the  consent  of  the  wife  was  not  expressed  in 
the  acknowledgment,  but  a  majority  of  the  Court  were  of 
opinion  pointedly,  "that  a  literal  strict  adherence  to  the 
u  very  words  of  the  act,  was  not  essentially  necessary  in  these 
"  cases,  but  the  substantial  requisites  by  which  the  rights  of 
"  married  women  were  intended  to  be  guarded  by  the  legis- 
"  lature,  should  be  pursued."  1  Binn.  475.  In  the  second 
case  there  was  no  acknowledgment  whatever  by  the  feme. 
In  the  last  case,  the  Chief  Justice  says,  "  No  particular  form 
a  is  necessary ;  the  words  of  the  act  need  not  be  used,  if 
"  its  directions  are  substantially  complied  with.  This  Court 
"  would  be  departing  from  the  line  of  its  duty,  if  it  were 
"  studious  to  avoid  conveyances  by  objections  founded 
"  merely  upon  form."  5  Binney  301.  I  shall  content  myself 
with  expressing  my  entire  concurrence  in  these  sentiments, 
upon  principles  of  public  convenience  and  the  common 
safety.  It  cannot  be  doubted,  that  a  woman's  voluntary  con- 
sent excludes  all  idea  of  coercion  or  compulsion. 

The  same  observations  apply  to  the  objections  taken  to 
the  acknowledgment  of  the  deed  from  Christian  Brand  and 
Feronica  his  wife,  to  Adam  Shatter,  as  it  pursues  the  same 
form.  The  wife  here  had  a  bare  contingent  right  of  dower,  and 

I.  3  K 


1814. 


SHALLER 
et  al. 

v. 
BRAND. 


442 


CASES  IN  THE  SUPREME  COURT 


1814. 


SMALLER 

et  al. 

v 
BRAND. 


did  not  claim  the  lands  in  her  own  right.  If  the  true  mean- 
"  ing  of  the  act  of  24th  February  1770  be,  that  the  form 
pointed  out  thereby  extends  to  all  cases  of  married  women 
executing  conveyances,  (concerning  which  however  I  have 
heretofore  expressed  my  sentiments  to  the  contrary)  and  if 
a  rigid  pursuance  of  that  form  be  absolutely  necessary  to 
bar  the  future  claims  of  such  women,  I  have  no  scruple  in 
declaring  that  the  acknowledgments  of  more  than  nineteen 
deeds  out  of  twenty,  which  I  have  met  with  since  the  pas- 
sing of  that  law,  would  be  found  miserably  defective.  Let 
any  one  examine  his  title  papers  to  lands,  and  pronounce  on 
the  correctness  of  my  remarks.  I  need  not  depict  the  har- 
vest of  law  suits,  which  would  grow  out  of  the  establish- 
ment of  the  principle  contended  for  on  the  part  of  the  plain- 
tiffs in  error. 

It  has  been  objected  that  Anne  Dillebaugh  the  widow  of 
Valentine  Dtllebaugh  deceased,  has  not  released  her  dower  in 
these  lands.  The  reasoning  of  the  President  upon  this  point 
is  satisfactory  to  my  mind.  Her  surviving  her  husband  only 
appeared  by  a  written  memorandum  taken  by  Mr.  Elder 
one  of  the  counsel  of  the  defendant  in  error,  and  the  same 
paper  shews,  that  she  actually  executed  a  release.  The 
whole  memorandum  like  the  confession  of  a  party  must  be 
taken  into  consideration,  as  well  what  operates  favourably 
as  adversely  to  him.  The  paper  therefore  which  creates  the 
objection  removes  it  fully. 

As  to  interest,  it  is  the  natural  consequence  of  the  obliga- 
tion after  it  became  due  by  its  condition,  unless  it  is  other- 
wise specially  provided  for.  Such  provision  is  inferred  from 
these  terms.  "  December  term  1800  judgment,  but  no  exe- 
"  cution  shall  issue,  until  the  title  of  the  land  for  which  the 
"  bond  was  given,  shall  be  perfected  by  the  plaintiff."  But 
the  terms  here  go  to  the  execution  only.  I  cannot  see  how 
it  supersedes  the  payment  of  interest  thereafter  growing 
due,  nor  can  I  perceive  on  what  reasonable  ground  the 
plaintiffs  in  error  could  avail  themselves  of  an  exemption 
from  interest.  They  and  their  ancestor  quietly  held  the 
undisturbed  possession  of  the  lands  since  1783,  and  receiv- 
ed the  profits  j  and  it  does  not  appear,  that  they  lost  any 
opportunity  of  making  an  advantageous  sale  of  the  lands,  or 
that  any  r.  »ey  lay  dead  in  their  hands,  which  had  been 


OF  PENNSYLVANIA. 


443 


SHALLEU 
etal. 

v. 
BRAND. 


bona  Jide  appropriated  to  discharge  the  bond.     Sugden's       1814. 
Law  of  Vendors  320. 

The  only  question  which  remains  to  be  considered,  is  the 
propriety  of  admitting  the  will  of  Valentine  Dillebaugh  in 
evidence,  under  the  facts  stated  in  the  bill  of  exceptions,  to 
which  we  are  confined.  [His  honour  then  detailed  those 
facts.]  No  evidence  was  previously  given  how  the  posses- 
sion had  gone  of  the  land,  or  how  long  the  papers  which 
had  been  received  had  been  in  the  hands  of  the  counsel  of 
Brand.  The  will  wears  the  appearance  of  originalness,  but 
no  account  was  given  where  it  was  found,  or  in  what  man- 
ner it  came  into  the  hands  of  Brand's  counsel  immediately 
before  the  trial.  It  is  perfectly  obvious,  that  if  the  general 
rule  of  evidence  is  to  be  dispensed  with  on  account  of  an 
instrument  coming  out  of  the  hands  of  the  adversary,  such 
possession  should  be  unequivocally  proved,  which  is  far 
from  being  the  case  in  the  present  instance.  It  cannot  be 
presumed,  that  an  original  will  goes  with  the  title  papers 
into  the  hands  of  a  purchaser.  It  is  the  duty  of  the  devisees 
or  executors  to  have  it  filed  in  a  public  office,  and  then 
proved. 

The  modern  law  of  England  is  said  in  some  cases  to  be, 
that  if  the  party  to  whom  notice  has  been  given  to  produce  an 
instrument,  produces  it  accordingly,  the  other  party  is  en- 
titled to  read  it  without  further  evidence.  Peak  in  his  Law 
of  Evidence,  page  109,  remarks,  that  against  the  party  to  it, 
there  seems  to  be  no  possible  objection  to  this  rule,  for  he 
must  know  whether  he  ever  executed  such  an  instrument 
or  not,  and  the  plaintiff  not  knowing  who  were  the  sub- 
scribing witnesses,  cannot  be  prepared  to  prove  the  execu- 
tion. In  one  case  this  rule  was  extended  to  third  persons, 
into  whose  hands  an  indenture  was  delivered ;  but  this  de- 
cision has  been  doubted  by  very  high  authority.  The  case 
was  much  questioned  at  the  time,  and  has  since  been  over- 
ruled. It  is  plain  that  this  will  was  not  the  act  of  Shaller. 

I  am  not  aware  upon  the  most  diligent  search,  of  any 
English  case  before  the  American  revolution,  which  de- 
cides on  the  present  subject  of  enquiry,  nor  of  any  particu- 
lar instances,  wherein  the  doctrine  has  been  examined  within 
this  state.  We  are  therefore  obliged  to  recur  to  the  general 
principles  of  the  law  of  evidence,  and  the  analogy  of  other 


444 


1814. 


SHALLER 
etal. 

v. 
BRAND. 


decisions,  as  applicable  to  this  cause  under  all  its  circum- 
stances. It  will  be  admitted  that  the  technical  rule  of  requir- 
ing instrumental  witnesses  to  prove  their  attestations,  is 
founded  on  sound  policy,  though  it  may  subject  the  parties 
to  inconvenience.  The  ground  of  relaxation  is,  that  the 
parties  not  knowing  the  names  of  the  witnesses,  cannot 
possibly  be  prepared  to  produce  them  at  the  moment  of 
trial.  But  here,  this  will,  if  delivered  over  by  the  vendees  to 
the  vendor,  was  known  to  his  counsel  in  January  1 808  ;  and 
the  recitals  in  no  less  than  three  of  the  deeds,  specifying 
that  the  children  claimed  under  the  will,  they  would  natu- 
rally be  led  to  examine  such  will,  which  if  not  proved  and 
remaining  of  record  at  Lancaster,  might  be  established  by 
the  subscribing  witnesses.  The  ground  for  relaxing  the  rule, 
if  it  held  here  as  it  is  said  to  do  in  England,  must  fail  the 
defendant  in  error  under  the  circumstances  of  the  case. 

But  the  Court,  after  having  permitted  the  will  to  be  read 
to  the  jury  under  all  the  circumstances  which  have  been 
given  in  evidence,  tell  them  that  proof  of  the  execution 
could  be  dispensed  with  only  on  the  ground,  that  it  had  ac- 
companied the  possession  of  the  land  for  more  than  thirty 
years;  that  this  was  a  fact  for  the  jury  to  determine  upon ; 
and  if  it  had  not  gone  with  the  possession  during  that  period, 
they  should  not  pay  attention  to  it.  This  is  placing  the  will 
upon  the  same  footing  as  an  ancient  deed,  and  the  Supreme 
Court  of  New  Tork  in  Jackson  v.  Blanshan,  3  Johns.  292, 
have  so  decided.  But  the  proofs  of  continual  possession 
should  have  preceded  the  shewing  of  the  will  in  evidence. 
It  was  so  done  in  that  case,  and  Kent  Chief  Justice  re- 
marks, that  it  is  the  accompanying  possession  alone,  which 
establishes  the  presumption  of  authenticity  in  an  ancient 
deed.  Where  presumption  fails,  the  presumption  in  its  fa- 
vour fails  also.  It  appeared  then  that  one  of  the  subscribing 
witnesses  was  dead,  another  was  non  compos,  and  the  third 
lived  at  Poughkeepsle,  and  no  reason  was  shewn  why  he  was 
not  produced.  The  omission  was  called  a  fatal  negligence 
on  the  part  of  the  plaintiff.  The  will  was  proved  in  Ulster 
county  shortly  after  the  testator's  death.  A  paper  cannot  be 
read,  because  it  is  dated  back  thirty  or  forty  years,  or  be- 
cause it  carries  with  it  the  appearance  of  time. 

I  know  of  no  case  in  the  English,  books,  which  goes  the 


OF  PENNSYLVANIA. 


445 


length  of  Jackson  v.  Blanshan,  nor  has  any  such  instance 
occurred  in  this  state.  No  account  whatever  was  given  of 
this  paper. 

I  can  see  a  material  difference  in  a  change  of  possession 
following  the  alienation  of  lands,  and  continuing  for  thirty 
years  and  upwards,  and  children  claiming  by  will  of  their 
father,  succeeding  to  his  estate  upon  his  death.  Taking  the 
fact  for  granted  which  is  stated  in  the  conveyances  from 
Valentine  and  Christian  Dillebaugh,  and  from  Tost  Brand 
and  Catharine  his  wife,  that  the  two  former  and  the  said 
Catharine  were  the  children  of  the  supposed  testator,  and 
came  into  possession  of  the  lands  (the  subject  of  contro- 
versy) upon  the  death  of  their  father,  we  cannot  infer  from 
thence  that  they  came  in  under  the  will  of  their  father  ;  for 
their  possession  may  be  equally  referrible  to  a  claim  by  de- 
scent, and  would  be  equivocal  in  this  particular.  The  charge 
of  the  Court  was  incorrect  in  stating,  that  if  Valentine  Dil- 
lebaugh  had  died  intestate,  his  estate  would  have  descend- 
ed to  his  two  sons  and  daughter,  as  under  the  will  in  equal 
proportions;  because  the  laws  of  descent  in  1778  gave  to 
the  eldest  son  two  shares. 

The  question  upon  this  bill  of  exceptions  is  not,  whether 
the  children  would  be  barred  by  their  conveyances,  but 
whether  legal  evidence  of  this  will  was  given,  as  part  of 
the  chain  of  title  previous  to  the  same  being  shewn  to  the 
jury.  I  have  no  hesitation  in  saying  that  the  vendor  had  a 
good  title  to  the  lands,  and  would  be  entitled  to  the  consi- 
deration money  on  making  the  proper  proofs.  But  it  is  of 
the  utmost  importance,  that  the  rules  of  evidence  should  be 
adhered  to,  and  thinking  as  I  do,  that  this  will  went  to  the 
jury  without  the  requisite  proof  in  the  first  instance,  I  am 
constrained  on  that  ground  alone,  without  the  slightest  re- 
ference to  the  merits  of  the  case,  to  declare  my  opinion  that 
the  judgment  of  the  Court  of  Common  Pleas  should  be  re- 
versed, and  a  new  trial  be  awarded. 

BRACKENRIDGE  J.  We  say  of  ore  sometimes,  that  it  is 
good,  but  that  it  requires  a  great  deal  of  digging  for  it. 
So  in  this  argument  we  have  a  great  deal  of  trouble  to  get 
at  the  facts  of  the  case.  This  is  owing  to  the  late  and  novel 
manner  in  which  bills  of  exceptions  are  taken,  and  brought 


1814. 


SHALLER 
etal. 

v. 
BRAND* 


446 


CASES  IN  THE  SUPREME  COURT 


1814. 


SMALLER 

etal. 

v. 

BRAND. 


before  the  court.  There  is  no  statement  of  the  facts  in  evi- 
"  dence  introductory  to  the  exceptions,  and  upon  which  they 
arise.  They  are  to  be  collected  from  the  docket  entries,  and 
the  notes  of  the  judge  on  the  trial,  containing  the  whole  evi- 
dence, out  of  which  we  are  left  to  collect  what  may  lead  to 
the  exceptions.  It  is  looking  for  a  needle  in  a  bundle  of 
hay.  What  will  become  of  the  records,  loaded  with  such 
husks,  instead  of  the  kernel  and  substance  of  testimony  ? 
Will  the  notes  of  the  judge  become  a  part  of  the  record, 
and  be  evidence  to  a  jury  in  another  cause  ? 

But  laying  considerations  of  this  kind  out  of  the  ques- 
tion, I  come  to  consider  what  I  can  collect  to  be  the  ground 
of  exception  here.  I  will  pass  over  what  does  not  seem  to 
have  been  made  a  ground  of  exception,  viz.  the  want  of  a 
substratum  or  foundation  of  the  whole  proceedings  ;  the 
judgment  opened  so  far  as  to  let  in  a  trial,  or  a  scire  facias 
on  the  judgment.  A  venire  without  this  has  no  bottom.  I 
take  up  the  exception  as  to  the  acknowledgment  of  the  dted. 
Had  it  been  a  new  case,  I  would  have  taken  one  of  the  ex- 
tremes, either  that  a  certificate  of  the  acknowledgment  as 
evidence  need  not  specify  more  than  that  it  was  acknow- 
ledged, or  that  it  should  pursue  the  words  of  the  act  of  as- 
sembly in  form  as  well  as  substance.  For  between  these 
two,  there  will  be  much  room  for  litigation  as  to  what  shall 
be  considered  substance* 

"  Iliacos  tntra  muros  peccatur  et  extra." 

But  take  the  rule  to  be  that  the  substance  shall  suffice,  I 
admit  the  substance  to  be  here,  and  the  acknowledgment  to 
be  good. 

It  will  not  be  understood  that  I  approve  of  the  decision 
in  Watson  v.  Bailey.  It  was  contrary  to  my  judgment.  I  did 
not  sit  in  that  case,  but  I  heard  one  of  the  two  judges  that 
decided  it,  Judge  Smith^  then  in  a  low  state  of  health,  say, 
that  he  acquiesced  only  under  the  distinction,  that  it  was  to 
be  confined  to  a  case  of  the  feme  covert's  lands,  which  she 
held  in  her  own  right  before  marriage  ;  and  I  take  it  that 
Judge  Teatestook  it  with  the  same  distinction.  But  I  thought 
that  such  a  distinction  could  not  avail,  and  that  it  would  be 
overruled  when  it  came  in  question.  In  a  subsequent  case 
such  distinction  was  ruled  not  to  exist.  In  consideration  of 
a  communis  error >  if  it  was  one,  and  that  estates  were  holden 


OF  PENNSYLVANIA. 

where  certificates  of  acknowledgment  fell  short  of  a  recital 
of  the  words  of  the  act  of  assembly,  which  I  take  to  have  ' 
been  directory  to  the  officer,  I  would  have  held  it  good. 
I  would  have  thought  that  a  certificate  that  the  writing  had 
been  acknowledged  by  the  feme  covert  in  due  form  of  law, 
as  was  the  case  there,  or  according  to  the  act  of  assembly 
in  that  case  made  and  provided,  was  sufficient.  I  would  have 
applied  the  maxim,  omnia  rite  et  solemniter  acta  prcesumun- 
tur.  The  officer  is  presumed  to  obey  his  instructions,  and 
to  do  his  duty. 

As  to  the  admission  of  the  will  in  evidence,  I  am  per- 
fectly satisfied  that  it  was  correct,  being  on  the  footing  of 
an  old  deed,  that  had  come  with  the  possession  thirty  years ; 
and  that  it  had  come  with  the  possession  thirty  years  was 
decided  by  the  jury,  for  it  was  on  finding  that  fact,  that 
they  were  directed  to  consider  it  as  evidence.. 

As  to  the  release  I  am  also  of  opinion  with  the  judge 
below,  and  as  to  interest  the  same.  I  think  him  in  all  these 
matters  abundantly  correct,  and  affirm  the  judgment. 

Judgment  affirmed. 


44<7 


1814. 


SHALLER 
et  al. 

v. 
BRAND. 


6b  447 

6wh  78 


EATON  against  The  Commonwealth. 


IN  ERROR. 


Lancaster, 
Saturday, 
May  28. 

THE  plaintiff  in  error  was  convicted  of  murder  of  the    if  processgoes 
r  to  the  sheriff  and 

first  degree,  at  a  Court  ot  Oyer  and  Termmer  for  Tork  county  eommis- 

county  in  April  1813.  ™£«  fc7urt 

of  Oyer  and  Ter- 
miner,  and  it  be 

On  the  8th  of  January  1813,  a  precept  by  the  judges  of  not  returned  so 
the  Common  Pleas  was  directed  to  the  sheriff  and  count 


commissioners,  reciting  the  intention  to  hold  an  Over  andPartofth,eJm?r 

.  r  process  that  the 

Terminer  on  the  5th  of  April  following,  and  commanding  jurors  have  been 

them   or  any   two   of  them,  "to  meet  on  a  certain  day,! 

"  at  least  thirty  days  before  the  first  Monday  in  April,  at 

"the  commissioners'  office,  and  draw  from  the  respective 

"  wheels  prepared  for  that  purpose,  in  pursuance  of  several 

"acts  of  assembly,  (naming  them)  a  sufficient  number  of 

"sober  and  judicious  persons  for  grand  and  petit  jurors; 


448 


CASES  IN  THE  SUPREME  COURT 


1814. 


EATON 

v. 

COMMON- 
WEALTH. 


"  and  that  a  copy  of  the  several  lists  of  jurors  so  drawn  as 
"  aforesaid,  he  the  said  sheriff  should  thereafter  without 
"  delay  deliver  to  the  prothonotary  of  the  county  of  York, 
"  that  the  same  might  be  fixed  up  in  his  office,  for  the  in- 
"  spection  of  all  concerned,  and  that  the  proper  and  neces- 
"  sary  venire  might  by  him  be  made  out  and  delivered  to 
"  him  the  said  sheriff  for  the  summoning  and  returning  the 
"jurors  aforesaid."  Then  followed  the  order  to  bring  all 
prisoners  &c.  before  the  said  judges,  to  notify  all  justices, 
constables,  coroner  &c.  that  they  appear  Sec.,  and  to  make 
public  proclamation  of  the  time  of  holding  the  said  court. 

Annexed  to  this  precept,  on  the  return  thereof,  was  a  list 
attached,  containing  the  names  of  all  the  justices  of  the 
peace,  and  also  that  of  the  coroner  of  the  county,  and  this 
was  all  that  appeared  as  to  the  return. 

The  "venire  to  the  sheriff  on  the  1st  of  March  1813,  began, 
"  in  the  name  and  by  the  authority  of  the  Commonwealth 
*'  of  Pennsylvania,  Walter  Franklin,  Hugh  Glasgow,  and 
"  Jacob  Hostetter,  to  the  sheriff  of  York  county,  Greeting. 
"We  command  you  &c." 

Annexed  to  this  writ  was  a  pannel  of  the  grand  jurors, 
and  another  of  the  petty  jurors,  and  the  customary  return  by 
the  sheriff  was  indorsed  on  the  writ.  All  the  petty  jurors 
had  their  places  of  abode  annexed,  but  four  wanted  addi- 
tions. All  the  grand  jurors  had  their  places  of  abode  annex- 
ed, but  twenty-one  wanted  additions. 

The  record  being  removed  to  this  Court  by  writ  of  error, 
the  following  errors  were  assigned  :  1.  That  the  style  of  the 
process  was  not  in  the  name  of  the  Commonwealth,  but  of 
Walter  Franklin  and  others  the  judges.  2.  That  it  did  not 
appear  that  there  had  been  any  legal  process  to  summon  the 
particular  grand  and  petit  jurors,  because  there  had  been  no 
return  shewing  that  those  jurors  had  been  drawn.  3.  That 
additions  were  wanting  to  the  names  of  several  of  the  grand 
and  petit  jurors.  4.  That  the  jury  were  drawn  and  selected 
by  the  sheriff  and  county  commissioners,  before  any  autho- 
rity had  issued  for  that  purpose. 

Cassatt  and  Kelly  argued  for  the  plaintiff  in  error. 
Stroman  for  the  Commonwealth. 


OF  PENNSYLVANIA. 


449 


TILGHMAN  C.  J.  The  plaintiff  in  error  was  indicted  in 
Tork  count)  for  the  murder  of  Margaret  Herman,  and  con-" 
victed  and  sentenced  for  murder  of  the  first  degree,  at  a 
Court  of  Oyer  and  Termmer  and  general  jail  delivery. 
Her  counsel  have  assigned  several  errors,  hut  my  opinion 
shall  be  confined  to  one.  By  the  act  of  4th  April  1 807,  it  is 
enacted,  that  whenever  any  process,  shall  be  issued  for 
summoning  a  jury,  the  sheriff  shall  immediately  on  receiv- 
ing the  same,  give  notice  to  the  county  commissioners,  who 
or  any  two  of  whom  shall  with  the  sheriff  proceed  to  draw 
out  of  the  proper  wheels,  the  names  of  the  number  of  jury- 
men required,  in  the  manner  prescribed  by  the  said  act,  and 
it  shall  be  the  duty  of  the  sheriff  to  summon  the  several  per- 
sons whose  names  are  so  drawn  out,  at  least  ten  days  pre- 
vious to  the  sitting  of  the  Court,  and  to  make  return  in 
what  manner  he  has  served  such  process. 

It  appears  by  the  record  before  us,  that  a  precept  was 
issued  on  the  8th  of  "January  1813,  whereby  command  was 
given  to  the  sheriff  and  the  county  commissioners,  that  they 
should  proceed  to  draw  the  names  of  a  sufficient  number  of 
persons  to  serve  as  grand  and  petit  jurors  at  a  Court  of 
Oyer  and  Terminer  and  general  jaii  delivery,  to  be  held 
on  the  first  Monday  of  April  next  following,  but  it  does  not 
appear  by  any  return  of  the  sheriff  or  commissioners,  that 
they  ever  proceeded  to  draw  the  jurors  according  to  the 
command  ol  the  writ.  Afterwards,  on  the  1st  of  March 
1813,  a  venire  facias  was  issued,  commanding  the  sheriff  to 
summon  twenty-four  grand  jurors  and  fifty  jurors,  whose 
names  are  mentioned  in  the  writ.  The  return  is  indorsed, 
"  executed  as  within  I  am  commanded,"  and  signed  by  the 
sheriff.  It  appears  therefore  on  the  whole  record,  that  the 
jurors  were  summoned,  but  it  does  not  appear  that  they 
were  drawn.  But  unless  they  were  drawn,  the  prothonotary 
was  not  authorized  to  issue  a  venire  facias  commanding 
that  those  particular  persons  should  be  summoned.  If  there 
had  been  but  one  precept,  commanding  the  sheriff  to  cause 
to  come  before  the  judges  at  a  certain  day  and  place,  a 
sufficient  number  of  jurors  &c.,  without  entering  into  the 
details  of  his  duty,  and  he  had  made  a  general  return,  that 
he  had  summoned  them  as  he  was  commanded,  with  a  pan- 
nel  containing  their  names  annexed,  it  might  have  been  in- 
VOL.  VI.  3  L 


1814. 


EATON 

v. 

COMMON- 
WEALTH. 


450  CASES  IN  THE  SUPREME  COURT 

1814.        tended,  that  in  summoning  them  he  had  complied  with  all 

EATON       legal  requisites.     But  that  is  not  the  case  here,   for   the 

v.  sheriff  is  commanded  to  summon  particular  persons,  and  he 

COMMON-     only  returns  that  he  has  summoned  those  persons,  but  to 

WEALTH.     tne  otner  precept  commanding  him  to  draw  the  names  of 

the  jurors  he  has  made  no  return  ;  so  that  it  does  not  appear 

on  this  record  either  expressly  or  by  necessary  implication, 

that  the  persons  who  served  as  jurors   were  summoned 

according  to    law.     I  am  therefore    of   opinion  that  the 

judgment  should  be  reversed. 

YEATES  J.  and  BRACKENRIDGE  J.   were  of  the  same 
opinion. 

Judgment  reversed.       ~eT45 

0  2    20 

======  25    49 

25    60i 

BAILEY  and  others  against  FAIRPLAY  Lessee  of    e!  2?< 

1X7  82     HO 

Lancaster,  WATSON.  84     35 

SffSf'  IN  ERROR. 

In  an  action  for  np^HIS  was  an  action  in  the  Common  Pleas  of  Lancaster. 

mesne  profits,  _  _  .     ,       . 

the  record  of  the  -•-  tor  the  mesne  profits  ot  certain  lands  recovered  by  Wat- 
menrrs^ondir1'*071  in  an  ejectment  against  John  Foulplay,  with  notice  to 
sive  evidence  that  p.  Bailey,  John  Mercer,  John  Messencope^  and  Joseph  Le 
in  possession  at  Fevre.  Messencops  died,  and  this  action  was  against  the 
other  three. 


brought,  and  also 
as  to  title  during 

the  whole  time         In  the  Court  below  the  only  evidence  of  the  defendants' 


deuce  of  'the         By  that  it  appeared  that  the  declaration  was  served  on  all 

length  of  timethat  .-...* 

the  defendant  was  the  defendants,  that  Montgomery  and  C.  Smith  appeared 


»  was  tne  record  of  the  recovery  in  the  ejectment. 
appeared  that  the  declaration  was  served  on  all 

...* 

dants,  that  Montgomery  and  C.  Smith  appeared 

generally,  pleaded  non  cul,  and  entered  into  the  common 
strike  out  the      ruje  j  an(j  tnat  the  cause  went  to  trial  without  filing  a  new 

name  ot  the  casual  ,  ,     •. 

,  ejector,  and  to  in-  declaration,  or  striking  out  the  name  or  the  casual  ejector 
real  defendant?    from  the  original  one.  After  the  trial  in  the  Circuit  Court, 


may  be  amended  anj  a  refusal  by  the  Chief  Justice  to  grant  a  new  trial,  the 

after  judgment  ;  J  .       «  % 

and  if  the  real      defendants  appealed  to  the  Supreme  Court,  and  judgment 


there  entered  against  all.*  Upon  this  evidence,  and 
tril?  anda^'eafs'  Proofof  tne  annual  value  of  the  land,  the  jury,  although  there 
the  judgment  is  as  was  evidence  that  Le  Fevre  one  of  the  defendants  had  never 
hTmfas'iftheTs"81  been  in  possession,  gave  a  verdict  for  the  value  from  the 

sue  haj  been  cor- 

*  Fid.  1  Bmney  470. 


OF  PENNSYLVANIA. 


451 


time  of  the  demise  laid  in  the  declaration*  to  the  time  of 
possession  received  by  the  plaintiff  after  the  recovery  in  the 
ejectment,  the  president  of  the  court  below  having  charged 
on  this  part  of  the  case  as  follows  : 

"  As  to  Joseph  Le  Fevre  there  is  no  proof  of  his  ever  hav- 
"  ing  been  in  possession  of  the  land,  or  receiving  any  of  the 
"profits  therefrom,  except  that  which  is  founded  upon  the 
44  proceedings  in  the  ejectment. 

44  In  ejectment,  in  order  to  entitle  a  plaintiff  to  obtain  a 
44  verdict,  it  is  absolutely  necessary  that  he  should  prove, 
"  that  the  party  from  whom  he  claims  the  land,  was  in  pos- 
"  session  of  it  at  the  cime  the  suit  was  commenced. 

"  A  judgment  in  ejectment,  therefore,  is  conclusive  evi- 
"  dence,  that  the  person  against  whom  the  recovery  was  had, 
"  was  in  possession  at  the  time  of  the  service  of  the  decla- 
"  ration. 

"  If  then  Joseph  Le  Fevre  were  a  party  defendant  in  the 
"  ejectment  brought  by  the  present  plaintiff,  there  would  be 
"  no  difficuly  in  the  proof  of  his  having  been  in  possession 
"  of  the  property  at  the  time  the  ejectment  was  commenced. 

44  The  suit  was  instituted  by  the  lessee  of  the  plaintiffs 
"  against  Richard  Foulplaij,  with  notice  to  John  Mercery 
44  Francis  Bailey,  John  Messencope  and  Joseph  Le  Fevre. 
*4  Mr.  Montgomery  and  Mr.  Smith  appear,  take  defence, 
41  and  enter  into  the  common  rule,  and  plead  not  guilty,  but 
44  it  does  not  appear  that  the  name  of  the  casual  ejector  was 
44  struck  out  of  the  declaration,  and  the  names  of  Mercer, 
<4  Messencope^  Bailey  and  Le  Fevre  substituted.  Notuith- 
4'  standing  this  omission,  I  think  it  is  manifest,  from  all  the 
"  proceedings,  that  the  verdict  was  not  against  the  casual 
44  ejector,  but  against  the  persons  for  whom  Mr.  Smith  and 
44  Mr.  Montgomery  appeared,  and  those  were  the  defendants 
44  in  the  present  suit.  The  question  of  title  was  discussed, 
44  and  the  cause  was  tried  on  its  merits.  The  principle  just 
4'  laid  down,  therefore  applies  in  my  opinion  to  this  case." 

To  this  charge  the  defendants  tendered  a  bill  of  excep- 
tions. 

C.  Smith  and  Montgomery  for  the  plaintiffs  in  error. 

The  tenant  in  ejectment  is  estopped,  in  an  action  for  the 
mesne  profits,  from  controverting  the  plaintiff's  title ;  but  the 
judgment  proves  nothing  as  to  the  length  of  time  the  defepd- 


1814. 


BAILEY 
etal. 

v. 
FAIRPLAT. 


452  CASES  IN  THE  SUPREME  COURT 

1814.        ant  was  in  possession,  and  therefore  in  all  cases  the  length  of 
„ ~his  possession  must  he  made  out  by  other  proof.  This  was  the 
el  at.        unanimous  resolution  of  the  judges  in  Asltn  v.  Parkin  (a) ; 
v.  and  it  is  clear  that  bo  h  the  judge  in  his  charge,  and  the 

FAIRPLAY.  jury  in  their  verdict,  proceeded  upon  a  different  principle. 
The  judge  it  is  true,  only  says  that  the  record  is  conclusive 
that  the  defendant  was  in  possession  at  the  time  of  the 
service  of  the  declaration  ;  but  as  there  was  no  evidence  of 
possession  but  the  record,  and  the  question  essentially  involv- 
ed the  duration  of  the  possession,  the  judge  misled  the 
jury  by  not  qualifying  his  opinion  so  as  to  make  it  applica- 
ble to  the  question.  He  gave  them  at  best  but  a  part  of  the 
law,  and  that  part  calculated  to  mislead.  The  jury  were  mis- 
led by  it ;  for  without  any  evidence  but  the  record,  they  gave 
the  whole  value  from  the  date  of  the  demise.  The  judge, 
acting  up  to  his  own  principle,  should  have  directed  the 
jury,  that  as  there  was  no  evidence  of  the  continuance  of 
possession,  they  ought  to  find  nominal  damages  only. 
•  But  the  record  was  not  evidence  at  all.  The  issue  tried 
was  between  the  lessee  and  the  casual  ejector,  and  the  judg- 
ment followed  the  issue.  Of  course  it  was  between  other 
parties.  As  to  the  appearance  and  defence,  there  were  none 
for  Le  Fevre,  and  by  the  evidence  in  this  cause,  he  never 
had  been  in  possession  for  a  moment. 

Bowie  and  Hopkins  for  the  defendant  in  error. 

The  law  as  delivered  by  the  judge  was  strictly  right,  and 
he  was  not  called  upon  to  be  more  particular.  But  if  he  had 
been,  he  ought  to  have  said,  that  the  judgment  was  conclu- 
sive evidence  of  possession  held  by  the  defendant,  from 
the  time  of  the  demise  in  the  declaration.  In  Goodtitle  v. 
Tombs  (£),  Gould  J.  says  it  must  be  taken  for  granted  af- 
ter a  judgment  in  ejectment,  that  the  defendant  kept  the 
plaintiff  out  from  the  time  of  the  demise.  Proof  of  the  judg- 
ment in  ejectment,  and  the  writ  of  possession  executed,  was 
in  his  opinion  sufficient  to  warrant  a  verdict  for  the  mesne 
profits.  The  judgment,  says  Blackstone,  is  conclusive  evi- 
dence against  the  defendant  for  all  profits  which  have  accru- 
ed since  the  date  of  the  demise.  3  Bl.  Comm.  205.  The 
plaintiff  was  bound  to  prove  him  in  possession  from  that 

(a)  2  Burr.  668.  (6)  3  Wih.  121. 


OF  PENNSYLVANIA. 


453 


time.  2  Cromp.  Frac.  206.  The  case  of  Aslin  v.  Parkin  is 
not  inconsistent  with  this  doctrine,  because  it  may  be  un- 
derstood of  a  possession  previous  to  the  demise.  It  is  suf- 
ficient for  us,  however,  if  there  is  a  mere  presumption  of 
possession  from  the  commencement  of  the  suitj  and  certainly 
it  ought  to  be  taken  for  granted,  that  the  man  who  entered 
tortuously,  retained  the  possession  from  the  commencement, 
till  the  delivery  of  possession  to  the  plaintiff.  The  Court 
will  intend  every  thing  possible  against  him.  As  to  the  man- 
ner in  which  the  possession  was  held  among  the  defendants 
themselves,  the  plaintiff  has  nothing  to  do  with  it. 

That  the  record  was  evidence  against  all  the  defendants, 
is  clear,  because  the  appearance  was  general,  M'-Cullough  v. 
Guetner  (a),  and  because  there  was  an  appeal  by  all,  whereas 
the  casual  ejector  is  not  competent  to  take  that  step.  Cooper 
v.  Dale  (6),  Orion  v.  Mee  (c),  Roe  v.  Doe  (W).  The  declara- 
tion might  have  been  amended  upon  motion,  and  may  now 
be  considered  as  amended.  3  Bl.  Com.  407.  The  Court  will 
overlook  the  exception.  Rex  v.  Landaff '  (e). 

Reply.  Goodtitle  v.  Tombs  was  the  case  of  an  actual  ous- 
ter by  one  tenant  in  common  of  another,  and  the  only 
question  was  whether  an  action  of  trespass  for  the  mesne 
profits  would  lie  in  such  a  case.  As  to  Blackstone^  he  is  evi- 
dently speaking  of  the  title  being  conclusively  proved  from 
the  date  of  the  demise,  not  the  possession. 

TILGHMAN  C.  J.  The  exception  to  the  charge  of  the  pre- 
sident is  that  the  jury  were  misled  by  it,  because  they  were 
not  told,  that  the  record  was  not  evidence  of  the  length  of 
time  for  which  the  defendants  were  in  possession,  which 
ought  to  have  been  proved  by  other  evidence.  It  has  also 
been  contended,  that  the  record  was  not  evidence  against 
the  defendants  at  all,  because  the  issue  appears  to  have  been 
joined  between  the  plaintiffs,  and  John  Foulplay  the  casual 
ejector. 

I  think  there  is  nothing  in  the  last  objection,  because  it 
appears  that  notice  of  the  ejectment  was  served  on  all  the 
defendants,  that  they  all  appeared  and  entered  into  the  com- 
mon rule,  that  they  all  appealed  frum  the  Circuit  Court  to  the 


1814. 


(«)  1  Binn.  214. 
(6)  1  Stra.  532. 


(c)  Barnes'  Notes  188. 
(</)  Id.  181. 


(e)2  Stra.  1011. 


454 


1814. 


BAILEY 
et  al. 

v. 
FAIHPLAY. 


CASES  IN  THE  SUPREME  COURT 

Supreme  Court,  and  that  in  the  Supreme  Court,  judgment 
"was  entered  against  all.  The  omission  therefore  of  striking 
the  name  of  the  casual  ejector  out  of  the  declaration,  and 
inserting  the  names  of  the  defendants  in  the  place  of  it,  is 
not  to  be  regarded.  An  amendment  would  have  been  grant- 
ed on  application  to  the  Court  at  any  time ;  and  viewing  the 
whole  record,  this  Court  perceives  that  judgment  was  finally 
entered  against  the  defendants,  which  is  conclusive  against 
them,  and  would  be  conclusive  even  if  a  writ  of  error  were 
now  depending  before  us,  because  we  should  consider  it  in 
the  same  light  as  if  the  error  had  been  amended. 

As  to  the  possession,  the  record  of  the  recovery  in  the 
ejectment  certainly  is  conclusive  evidence  of  the  defendants' 
being  in  possession  at  the  time  the  ejectment  was  brought, 
because  unless  that  had  been  proved,  the  plaintiff  could  not 
have  recovered.  In  order  to  recover  in  ejectment,  the  plaintiff 
must  prove,  first  that  he  had  title  at  the  time  of  the  demise 
laid  in  his  declaration,  and  secondly  that  the  defendant  was 
in  possession  at  the  time  the  suit  was  brought ;  and  on  proving 
these  two  things  he  is  entitled  to  a  verdict.  As  it  is  not  ma- 
terial to  the  present  question,  I  will  not  say  positively,  whe- 
ther the  plaintiff  might  not  recover  on  proving  that  the 
defendant  had  been  in  possession  some  time  before  the  com- 
mencement of  the  ejectment,  and  within  the  time  laid  in  the 
demise,  although  not  at  the  time  of  the  action  being  com- 
menced. But  is  he  bound  to  prove  that  the  defendant  was 
in  possession  from  the  time  of  the  demise  ?  It  is  contended 
on  the  part  of  the  plaintiff  that  he  is.  But  I  cannot  under- 
stand on  what  principle  this  position  can  be  supported.  The 
plaintiff  may  lay  the  ouster  committed  by  the  defendant  at 
any  time  he  pleases,  provided  it  is  after  the  demise ;  but  he 
is  put  to  no  proof  of  it.  The  tenant  is  obliged  to  enter  a  rule 
whereby  he  agrees  to  confess  the  ouster,  before  he  is  per- 
mitted to  become  defendant  in  the  action.  But  as  to  the 
possession,  it  is  enough  if  the  plaintiff  proves  the  defendant 
to  have  had  it  at  the  time  the  suit  was  commenced.  So  that 
no  inference  can  be  drawn  from  the  recovery  in  the  ejectment 
as  to  the  length  of  time  for  which  the  defendant  has  been  in 
possession.  Thus  the  law  would  seem  to  be  on  principle,  and 
we  shall  find  that  the  authorities  are  in  conformity  to  it. 

In  Aslin  v.  Parkin,  2  Burr.  668,  Lord  Mansfield  says  in 


OF  PENNSYLVANIA.  455 

express  terms,  that  *'  as  to  the  length  of  time  the  defendant        1814. 
"  has  occupied,  the    judgment  proves  nothing."     And  in       BAILEY 

2  Peake*s  Evtd.  326,  it  is  laid  down  as  settled  law,  that  in         et  al. 
au  action  tor  m  sne  profits  after  a  recovery  in  ejectment,  the  v. 
plaintiff  must  prove  the   length  of  time  the  defendant  has    *AIRPLAY- 
been  in  possession.  To  this  the  counsel  for  the  plaintiff  op- 
pose what  is  said  by  Gould  Justice,  in  Goodtitle  v.  Tombs 

3  Wils.  121.    The  words  are  these.  "  It  must  be  taken  for 
"  granted  in  this  case,  that  there  was  an  actual  ouster,  and 
44  that  the  defendant  kept  him    out  from  the  time  of  the 
44  demise  until  the  judgment  in  the  ejectment."  But  on  ex. 
amining  this  case,  it  will  be  found  that  the  expressions  relied 
on  have  no  bearing  on  the  point,  because  there  was  no  question 
as  to  the  length  of  time  the  defendant  was  in  possession.  It 
was  an  action  for  recovery  of  m^sne  profits  after  judgment 
by  default  in  an  ejectment  against  Tombs,  who  was  tenant 
in  common  with  the  lessor  of  the  plaintiff";  and  the  only  ques- 
tion submitted  to   the  court  was,  "  whether  one   tenant  in 
**  common  could  maintain  this  action  against  the  other,  to 
"  recover  damages  for  the  expulsion  and  mesne  profits." 
This  is  the  point  then   to  which  the  general  expressions  of 
Gould  are  to  be  applied.  As  to  the  length  of  the  defendant's 
possession  there  was  no  dispute,  it  must  have   been  either 
proved  or  agreed  on  at  the  trial.   All  that  the  Court  had  to 
decide  was,  whether  one  tenant  in  common  could  recover  in 
this  action  at  all,  taking  for  granted  that  the  defendant  had 
been  in  possession  and  received  the  profits.  The  same  remark 
will  be  an  explanation  of  the  passages  cited  from  Butler's 
Nisi  Prius  and  3  Black  Comm.  205,  "  that  the  judgment  is 
44  conclusive  evidence  to  recover  mesne  profitsyrom  the  time 
44  of  the  demise"  The  meaning  is,  that  it  is  conclusive  as  to 
title,  for  the  -whole  time  laid  in  the  demise.    But  if  the  plain- 
tiff would  recover  the  profits  beyond  the  time  of  the  demise, 
the  defendant  may  put   him  to  prove  his  title,  because  the 
record  only  shows  that  he  recovered  the  term  mentioned  in 
the  declaration. 

But  it  is  objected,  that  be  the  law  as  it  may  on  this  point, 
the  charge  of  the  judge  was  not  erroneous,  because  it  was 
silent.  This  is  very  true,  and  it  is  also  true,  that  in  what  the 
judge  did  say  he  was  correct.  But  still  the  charge  upon  the 
whole  was  incorrect ;  because  by  stating  only  part  of  the  /aw, 


456 


CASES  IN  THE  SUPREME  COURT 


1814. 


BAILEY 
etal. 

v. 
FAIRPLAY. 


the  jury  were  suffered  to  fall  into  an  error,  by  which  the 
defendants  were  injured.  The  jury  are  to  receive  instruc- 
tions from  the  Court.  If  this  instruction  is  given  in  such  a 
manner  as  to  mislead  them,  there  is  an  error  which  ought 
to  be  corrected.  The  record  contains  the  evidence  and  the 
charge  to  which  the  defendant's  counsel  excepted,  and  pray- 
ed that  the  charge  might  be  reduced  to  writing,  and  filed 
according  to  the  act  in  such  case  provided.  As  the  whole 
charge  is  on  the  record,  we  must  now  take  it,  that  the  whole 
is  open  to  exception,  although  if  the  judge  had  thought 
proper,  he  might  have  called  on  the  counsel  to  point  out 
the  part  to  which  he  objected,  and  reduced  that  part  only 
to  writing.  On  the  whole  it  appears  to  me  that  there  is  er- 
ror. I  am  therefore  of  opinion  that  the  judgment  should  be 
reversed,  and  a  venire  de  novo  be  awarded. 

YEATES  J.  and  BRACKENRIDGE  J.  were  of  the  same  opi- 
nion. 

Judgment  reversed. 


The   Commonwealth  ex  rel.  BRODHEAD  against 
COCHRAN  and  others,  the  Officers  of  the  Land 


Lancastw, 
Saturday, 

May  28. 

The  Board  of 
property  has  the 
same  judicial 
power,  in  regard 
to  donation  lands, 
as  in  other  cases ; 
and  after  they 
have  deliberated 
and  decided 
agpinst  issuing 
patents,  a  manda- 
mus does  not  lie 
to  compel  them. 


30    33 

_85_459 

AT  May  Term  1810  a  rule  was  obtained  upon  the  de- 
fendants to  shew  cause  why  a  Mandamus  should  not 
issue,  commanding  them  to  grant  patents  to  the  relator,  for 
several  tracts  of  donation  land  claimed  by  him,  in  right  of 
several  soldiers  of  the  continental  army  in  the  war  of  the 
revolution. 

To  this  the  defendants  made  return  at  May  sessions  1811, 
that  the  relator  had  presented  a  petition  to  them  for  the 
same  object,  and  that  they  had  decided  to  reject  it  ;  the  re- 
turn setting  out  the  cause  of  their  decision. 

Hopkins  now  moved  for  a  peremptory  mandamus,  and 
upon  the  merits  contended  that  the  decision  was  wrong, 


OF  PENNSYLVANIA. 

and  that  the  Board  in  regard  to  donation  lands  exercised  a 
ministerial  not  a  judicial  power. 

TILGHMAN  C.  J.  It  was  determined  by  this  Court  in  the 
case  of  The  Commonwealth  ex.  relat.  Griffith  r.  The  officers 
of  the  Land  Office  that  when  the  board  oi  property  acted  in 
a  judicial  capacity,  they  might  be  commanded  to  proceed  to 
a  decision,  but  their  decision  could  not  be  controlled.  In 
this  case  they  have  decided  on  the  petition  of  Mr.  Brod- 
head,  so  that  it  is  only  necessary  to  enquire  whether  they 
acted  in  a  judicial  capacity.  That  they  did  act  judicially 
there  can  be  no  doubt.  By  the  act  ot  2d  April  1802,  3  Sm. 
Laws  506,  they  are  invested  with  the  same  power  with 
regard  to  donation  lands,  that  they  possessed  in  other  cases  ; 
and  they  are  expressly  authorized  to  make  the  necessary 
inquiry,  and  decide  on  the  validity  and  propriety  of  the 
claims  of  each  and  every  applicant.  In  each  case  several 
facts  must  necessarily  be  enquired  of.  Whether  the  soldier 
was  in  the  Pennsylvania  line  of  the  army  ?  Whether  he  died 
in  service,  or  served  till  the  end  ol  the  war?  Whether  an 
applicant  in  right  of  a  soldier  has  obtained  a  fair  and  It  gal 
transfer  of  the  right  ?  Whether  such  transfer  was  made 
prior  to  the  laying  out  and  survey  of  the  lands,  for  if  it  was, 
it  is  void  by  the  act  of  12th  March  1783.  These  and  often 
other  matters  must  be  ascertained,  before  a  patent  can  be 
issued.  Besides,  difficulties  frequently  arise  on  the  con* 
struction  of  the  several  acts  of  assembly,  which  have  been 
made  on  this  subject.  So  that  in  no  case  can  the  board  pro- 
ceed without  inquiry  and  deliberation.  Having  deliberated 
and  decided  in  the  present  instance,  I  am  of  opinion  that 
nothing  more  can  be  required  of  them.  A  mandamus  there- 
fore ought  not  to  be  issued. 

YEATES  J.  Divers  acts  of  assembly  have  passed  at  dif- 
ferent times  respecting  the  donation  lands  intended  to  be 
granted  to  the  officers  and  soldiers  of  the  line  of  this  state. 
The  persons  so  entitled  are  described  in  the  fourth  section 
of  the  act  of  24th  March  1785,  "to  be  officers  and  soldiers 
"of  the  Pennsylvania  regiments,  or  of  independent  corps 
"  acknowledged  by  this  state  as  of  their  quota  in  the  fede- 

VOL.  VI.  3  M 


457 


1814. 


COMMON- 
WEALTH 
v. 

COCHRAN. 


458 


CASES  IN  THE  SUPREME  COURT 


WEALTH 

V. 
CoCHRAN. 


"  ral  array,  who  have  served  therein  until  the  end  of  the 
"  late  war  with  Great  Britain,  together  with  the  widows 
"  and  children,  or  either  thereof,  of  such  officers  and  pri- 
"  vates  aforesaid,  as  were  slain  in  battle,  or  died  in  the 
"  service." 

The  periods  wherein  such  lands  were  to  be  applied  for, 
were  regulated  by  different  laws,  which  have  been  extended 
from  time  to  time  under  certain  restrictions.  Under  the  third 
section  of  the  act  of  2d  April  1802,  u  the  board  of  property 
"  were  authorized  to  exercise  the  same  powers  relative  to 
"  donation  lands,  as  in  other  cases,  and  in  all  cases  of  drffi- 
"  culty  or  dispute  between  applicants  under  this  law,  and  on 
"  the  validity  and  propriety  of  the  claims  of  applicants,  they 
"  are  authorized  to  make  the  necessary  inquiries  and  decide" 

Daniel  Brodhead  has  applied  to  this  Court  to  enforce  the 
delivery  of  patents  to  him  in  consequence  of  certain  trans- 
fers to  him  of  donation  lands,  by  persons  said  to  be  soldiers 
in  the. Pennsylvania  line;  and  a  return  has  been  made  to  the 
rule  served  upon  the  board  of  property,  that  they  had  reject- 
ed his  petition  made  to  them,  and  that  a  number  of  the 
persons  under  whom  he  claims,  had  actually  drawn  their 
lands. 

The  power  of  this  Court  to  issue  writs  of  mandamus  in 
proper  cases  cannot  be  questioned.  The  principle  established 
by  us  on  the  mandamus  applied  for  by  Robert  E.  Griffith 
against  John  Cochran  secretary  of  the  Land  Office  in  May 
Term  1812,  must  govern  the  decision  in  this  instance. 

It  belongs  to  the  board  of  property  to  decide,  whether 
the  persons  under  whose  conveyances  Mr.  Brodhead  claims, 
are  within  the  class  of  soldiers  entitled  to  the  bounty 
of  the  legislature ;  whether  the  true  men  have  sold  their 
shares  by  contracts  not  interdicted  by  the  eighth  section  of 
the  law  of  12th  March  1783,  and  whether  application  has 
been  made  in  due  time  for  the  lands.  u  They  were  authori- 
"  zed  to  make  the  necessary  inquiry,  and  to  decide  on  the 
"  validity  and  propriety  of  the  claim"  under  all  its  circum- 
stances. They  have  proceeded  in  this  deliberative  duty,  and 
have  rejected  the  claim.  It  rests  not  with  this  Court  upon 
the  present  motion  to  inquire  into  the  grounds  of  their  judi- 
cial act,  nor  to  prescribe  the  rule  which  they  ought  to  pur- 


OF  PENNSYLVANIA.  459 

sue.  Our  power  in  such  a  case  is  confined  to  directing  them        1814. 
to  proceed  to  a  decision,  but  not  to  influence  them  in  their     COMMON- 
decision.  Such  was  our  opinion  in  the  case  of  Mr.  Griffith.     WEALTH 

I   concur  in  opinion  that  the  mandamus  prayed  for  be  v' 

,     .    ,  COCHRAN. 

denied. 

BRACKENRIDGE  J.  concurred. 

Mandamus  denied. 


END  OF  MAY  TERM,  LANCASTER   DISTRICT,    1814. 


CASES 

IN   THE 

SUPREME  COURT 

OF 

PENNSYLVANIA. 

Middle  District,  June  Term,  1814. 


1814.  GRUBB  against  Fox.  eb  450 

___  6  81    230 

89    464 


Sunbury,  Tlc 

Saturday,  IN 

June  18. 

A  writ  of  error  TN  proceedings  before  a  landlord  and  tenant's  court,  the 

is  not  a  superse-  ,••/»••  i       •        i  •  r 

deas  to  proceed-    -1- plaintiff  in  error  obtained  possession  or  certain  premises, 
mgs  m  the  Com-     f  which  the  defendant  was  tenant.  These  proceedings  were 

mon  rleas, 

between  landlord  reversed  in  the  Common  Pleas  of  Northumberland  on  the 
19th  of  January  last,  and  on  the  same  day  this  writ  of 
error  was  sued  out,  security  entered,  and  notice  immedi- 
ately given  to  the  opposite  party.  On  the  same  day  also  a 
writ  of  restitution  and  aji.fa*  for  costs  were  issued,  under 
which  the  costs  were  levied,  and  possession  restored  to  the 
tenant. 

Hall  for  the  plaintiff  in  error,  now  moved  for  a  writ  of 
restitution  to  reinstate  Mr.  Grubb  in  the  possession,  upon 
the  ground  that  the  writ  of  error  was  a  supersede  as  to  pro- 
ceedings in  the  Common  Pleas.  Moorfoot  v.  Chivers  («), 
Curd  v.  Eastmeed  (£). 

Greenough  and  Watts  contra.  Proceedings  under  the  land- 
lord and  tenant  law,  are  sui  generis:  their  object  is  summa- 
rily to  give  the  possession,  without  being  obstructed  by 
writs  of  error  or  certiorari,  and  of  course  to  restore  a  posses- 
sion in  the  same  manner,  where  in  any  stage  of  the  case  it 
has  been  illegally  ousted.  It  has  been  htld  that  a  certiorari, 

(a)  8  Mod.  373.  (6)  1  Barnes  2GO. 


CASES  IN  THE  SUPREME  COURT,  fcc.  461 

to  the  justices  is  no  supersedeas  ;  Anon.  4  Dall.  214  ;  though        1814. 
in  a  common  case  the  law  is  otherwise,  2  Com.  Dig.  ±3.  E.       GRUBB 
Certiorari.  The  law  must  be  the  same  with  a  writ  of  error.  v. 

Fox. 

Duncan  in  reply.  On  general  principles  this  writ  of  error 
was  a  supersedeas,  and  there  is  nothing  peculiar  in  this 
kind  of  case.  When  the  proceedings  comt  to  the  Common 
Pleas,  they  assume  a  new  appearance,  and  become  a  com- 
mon law  proceeding.  This  is  a  judgment  of  a  court  of  com- 
mon law,  removed  here  by  writ  ol  error.  A  certiorari  is  a 
different  thing.  It  removes  proceedings,  not  according  to 
the  course  of  the  common  law. 

TILGHMAN  C.  J.  delivered  the  judgment  of  the  Court, 
Teates  J.  declining  to  give  any  opinion  on  account  of  his 
connection  with  the  plaintiff  in  error. 

The  usual  effect  of  a  certiorari,  is  to  stay  the  proceed- 
ings of  the  inferior  jurisdiction  ;  such  likewise  is  the  usual 
effect  of  a  writ  of  error.  But  it  has  been  settled,  that  in 
cases  between  landlord  and  tenant,  the  certiorari  shall  not 
stay  proceedings,  the  act  of  assembly  intending  to  give 
landlords  a  speedy  remedy.  In  order  to  preserve  uniformity 
of  principle,  and  to  do  equal  justice  to  landlord  and  tenant, 
the  writ  of  error  should  have  no  greater  force  than  the  cer- 
tiorari. It  might  l>e  presumed  in  the  first  instance,  that  the 
landlord  WHS  entitled  to  the  possession,  because  the  jury 
found  so.  But  now  that  the  first  proceedings  are  reversed 
by  the  Court  of  Common  Pleas,  the  presumption  is  in  favour 
of  the  tenant.  Had  not  the  Court  considered  this  as  a  case 
sui  generis^  the  tenant  would  never  have  lost  the  posses- 
sion, Decause  the  certiorari  would  have  protected  him.  By 
allowing  the  writ  of  error  no  greater  force  than  the  certio- 
rari, we  place  both  parties  on  an  equal  footing,  and  of 
course  do  equal  justice  to  both.  I  am  therefore  of  opinion 
that  the  motion  of  the  plaintiff  in  error  should  not  be  granted. 

Motion  denied. 


462  CASES  IN  THE  SUPREME  COURT 


1814.  E  N  s  L  i  N  against  B  o  w  M  A  N  ct  al.  Executors  of  6b-  - 

Sunbury,  S  T  E  W  A  R  T  .  esV 

Saturday,  I2sr 

June  18.  IN  ERROR.  _!3sO 
The  commis- 


sioners under  the  rriHIS  was  an  action  of  ejectment  in  the  Common  Pleas 

compensating  act 

of  4th  jtpnli799,   •*•  ot  Luzeme  county,  by  the  executors  ot  Stewart  against 

mfntaoTisth"      EnsUri,  in  which  the  jury  found  the  following  special  verdict. 
March  1800,  and 
6th  JprillSWZ 

had  no  jurisdiction  "  The  jury  find  and  return  the  following  special  verdict  : 
rflhc3ESS?  That  on  the  16th  January  1800,  Samuel  Jame<on,  of  the 
claimant  for  land  township  of  Newport,  applied  under  the  act  of  thu  4th  April 

within  the  seven-  *  .  *  «-     • 

teen  townships,     1799,  entitled  "  an  act  for  ottering  compensation  to  the  Penn- 
claimants  of  certain  lands  within  the  seventeen 


catein  his  favour,  «  townships  in  the  county  of  Luzerne*  and  for  other  purposes 

unless  he  or  those  .  .  J 

under  whom  he   *'  therein  mentioned,"  for  7OO  acres  of  land,  to  wit,  400  acres 
fily'Settdiedeen  thereof  in  the  township  of  Hanover,  and  3OO  acres  the  resi- 

and  resident  on    due  jn  the  township  of  Newport,  in  the  county  of  Luzerne  ; 

the  land  before  ,  .  -  '  ,  ' 

the  decree  at       and  that  on  the  5th  day   of  December  1800,  Jeremiah  Ha- 

2  The°certincate  Serman  of  Poughkeepsie  in  the  state  of  New  Tork,  heir  at 
ofthecommis-     law  of  "John  Hare  rman  deceased,  applied  under  said  act  for 

sioners  in  favour  r  «       •  •         i  u-          r    »T  r  •  i 

of  &  Connecticut  750  acres  ot  land  in   the    township  ot  Newport  atoresaid. 


That  on  the  10th  dav  of  September   1802,  lots  No.  46  &  48, 

under  whom  he    were  rcsurveyed  by  order  of  the  commissioners  appointed 
claims,  were  ac-  .         ,         r  .  ,  ,.  ,  ,      ,       „,, 

tuaiiy  so  settled    to  put  in  execution  the  atoresaid  act  ot  assembly,  by  Thomas 

not  conclude'  a0"  Sambourne  surveyor  to  said  commissioners,  and  a  draught 
Pennsylvania  thereof  made  and  remrned  to  said  commissioners,  bearing 
A  Pennsylvania^^  December  1st  1802.  That  on  the  16th  January  18O4, 
tfe^toiand10861'1"  tne  ^°^owing  certificate  was  granted  by  Thomas  Cooper  and 
•within  the  seven-  John  M.  Taylor  two  of  the  commissioners  under  said  act, 

teen  townships,  ~,  „  ,  .          TIT 

arose  subsequent  to  James  Stewart  the  above  named  testator,  to  wit,  "We 
tne  untlers>gne(l  commissioners,  duly  appointed  for  putting 


to  hold  against  "  in  execution  an  act  of  the  general  assembly  of  the  Corn- 
claimant,  except  "  monwealth  of  Pennsylvania,  entitled  "  An  act  for  offering 
tied  and'resident  "  compensation  to  the  Pennsylvania  claimants  of  certain  lands 
there  before  the  "  within  the  seventeen  townships  in  the  county  of  Luzerne, 
row,  or  one  claim-  "and  for  other  purposes  therein  mentioned,"  passed  the  4th 


of  April  1799,  and  the  supplement  to  the  act  passed 
"the  15th  day  of  March  1800,  and  the  further  supplement 
"  thereto  passed  the  6th  day  of  April  1802,  do  certify,  that 
"  James  Stewart  is  the  owner  as  a  Connecticut  claimant 


OF  PENNSYLVANIA. 


463 


"of  one  hundred  and  sixty  acres  of  land  in  the  township  of 
"  Newport,  one  of  the  beforementioned  seventeen  townships, 
"being  Nos.  46  and  48,  in  the  second  division  of  the  said 
"  township,  which  numbers  46  and  48,  were  severally  occu- 
"  pied  by  a  Connecticut  claimant  and  actual  settler  there,  be- 
"Jore  the  time  of  the  decree  of  Trenton,  and  were  particularly 
"assigned  to  such  actual  settler,  prior  to  the  said  decree, 
"agreeably  to  the  regulations  then  in  force  among  the  set- 
"  tlt-rs.  The  said  land  (a  draught  of  survey  whereof  is  here- 
"  unto  annexed)  is  included  in  the  application  of  Samuel 
"  Jameson  and  Jeremiah  Hagerman,  under  the  provision  ot 
"  the  act  aforesaid,  of  whicn  applications  an  official  transcript 
41  has  been  transmitted  to  us,  from  the  land  office  of  this 
"  Commonwealth  of  Pennsylvania,  No.  52,  663,  of  the  said 
"  tracts  ;  fifty  acres  part  thereof  is  of  the  third  class,  the  resi- 
"due  thereof  of  the  fourth  class.  January  16th  1804.  Sign- 
"  ed  Thomas  Cooper,  and  John  M.  Taylor." 

"  We  further  find  that  the  aforesaid  survey  was  returned 
into  the  office  the  1 1th  July  1808,  and  that  in  pursuance  of 
said  survey  and  certificate,  and  the  last  will  and  testament  of 
the  said  James  Stewart  de-ceased,  a  patent  issued  from  the 
Commonwealth  of  Pennsylvania  for  the  said  lots,  Nos.  46 
and  48  of  the  second  division  of  Newport  township,  on  the 
13th  July  1808,  to  Ebenezer  Bowman  and  Joseph  Jameson 
executors  of  the  said  James  Stewart,  deceased,  in  trust  for 
the  uses  mentioned  in  the  said  last  will  of  the  said  James 
Stewart.  And  we  further  find  that  the  said  John  Hagerman 
made  application  for  the  said  lot  No.  48,  to  the  commis- 
sioners appointed  under  the  law  of  1787,  commonly  called 
the  confirming  law  ;  and  that  in  the  said  year  1787,  the  town 
lot  of  the  town  of  Newport  was  surveyed  to  the  said  John 
Hagerman  by  William  Montgomery,  and  out  lines  ot  the 
said  town,  and  cross  lines  of  the  said  township,  were  run  in 
the  summer  of  the  same  year,  and  no  person  was  settled 
then  on  the  said  lot,  run  for  the  said  John  Hagerman,  and 
but  few  in  the  township." 

"  And  we  do  further  find,  that  a  warrant  issued  from  the 
Commonwealth  of  Pennsylvania  to  Sarah  Hollenback,  on 
the  10th  day  of  May  1792,  for  four  hundred  acres  of  land, 
to  include  a  small  bog  meadow  on  one  of  the  head  branches 
of  Forge  Creek^  that  empties  into  the  east  side  of  the  Sus- 


1814. 


ENSLIN 

v. 

BOWMAN 
etal. 


464 


CASES  IN  THE  SUPREME  COURT 


1814. 


EWSLIN 

V. 

BOWMAN 

etal. 


quehanna  near  tht  Nanttcoke  falls  on  the  said  river.  That  in 
""  pursuance  of  said  warrant,  on  the  9th  day  of  December  1 793, 
four  hundred  forty  one  acres  and  one  quarter  and  allowance 
&c.,  were  -surveyed  on  the  head  of  the  Forge  branch  of 
Nanttcoke,  and  returned  on  said  warrant  into  the  land  office 
of  Pennsylvania.  That  the  purchase  money  was  paid  on  the 
5th  June  1792.  That  in  1792,  the  warrantee  aforesaid  be- 
gun an- improvement,  raised  ore,  and  exercised  other  acts  of 
ownership  on  said  premises,  and  in  the  year  1794,  built  a 
dwelling  house  on  the  land,  and  in  the  spring  of  1795,  placed 
a  tenant  in  the  house  so  built  the  preceding  season,  who  con- 
tinued to  reside  therein  and  thereon,  clearing  and  cultivat- 
ing and  improving  said  land,  until  the  spring  of  1798,  when 
George  Enalin,  the  above  named  defendant,  came  into  the 
possession  of  the  said  house  and  land  by  virtue  of  a  deed 
poll  from  the  said  Sarah  Hollenback  the  aforesaid  warrantee, 
to  him  the  said  George  Enslin,  dated  February  24th,  1798.'* 

"  And  we  do  further  find,  that  a  patent  issued  in  pursu- 
ance of  the  said  warrant,  survey  arid  deed  poll,  to  the  said 
George  Enshn,  on  the  llth  day  of  June  1798,  and  that  the 
said  George  Enshn  has  continued  to  reside  on  the  premises 
in  dispute,  from  the  spring  of  1798,  to  the  time  of  finding 
this  verdict.  That  he  the  said  Geirge  had  planted  an  orchard, 
built  a  new  house  and  barn,  and  cleared  thirty  or  forty 
acres  before  the  present  ejectment  was  brought." 

u  And  we  do  further  find,  that  the  first  actual  settlement 
made  on  the  lots  and  land  for  which  the  ejectment  was 
brought,  was  made  under  the  warrant  aforesaid  to  the  said 
Sarah  Hollenback,  and  that  no  person  or  persons  ever  im- 
proved settled  or  lived  on  either  of  the  said  lots  No.  46 
and  48,  except  the  above  named  defendant,  and  those  under 
whom  he  makes  title." 

"  And  we  further  find,  that  John  Hagerman,  Jeremiah 
Hagerman,  Samuel  Jameson  and  James  Stervar^  aforesaid, 
or  either  of  them,  never  improved,  nor  lived,  or  settled  on 
either  of  the  said  lots  No.  46  and  48,  nor  lived  in  Newport 
township  aforesaid ;  and  we  further  find  that  the  land  in  dis- 
"pute  for  which  this  ejectment  is  brought  is  comprised  in  the 
plaintiffs'  survey  certificate  and  patent  aforesaid,  and  also  in 
the  aforesaid  warrant,  survey  and  patent  to  the  defendant  as 
aforesaid.  And  we  further  find  that  the  commissioners  un- 


OF  PENNSYLVANIA. 


465 


der  the  confirming  law  of  1787,  opened  their  office  some 
time  in  the  summer  of  the  same  year,  and  were  driven  off 
and  left  the  county  about  the  1st  October  in  said  year." 

"  Upon  the  above  finding,  if  the  Court  shall  be  of  opinion 
the  plaintiffs  by  law  are  entitled  to  recover,  then  we  find 
for  the  plaintiffs,  six  cents  damages  and  six  cents  costs  ;  but 
if  the  Court  shall  be  of  opinion  that  upon  the  whole  finding, 
the  plaintiffs  by  law  ought  not  to  recover,  then  we  find  in 
favour  of  the  defendant." 

Upon  this  verdict  judgment  was  rendered  for  the  plain- 
tiffs below,  and  the  defendant  took  a  writ  of  error. 

The  case  was  elaborately  argued  in  this  Court,  by  Dun- 
can for  the  plaintiff  in  error,  and  by  Watts  for  the  defend- 
ants in  error. 

TILGHMAN  C.  J.  It  appears  by  the  special  verdict  in  this 
case,  that  George  Enslin,  the  defendant  below,  claimed  under 
a  warrant  to  Sarah  Hollenback,  dated  10th  May  1792,  for  400 
acres  of  land,  a  survey  in  pursuance  of  the  said  warrant  on 
the  9th  December  1793,  regularly  returned  to  the  land  office, 
and  a  patent  on  the  1  Ifajfune  1 798,  the  purchase  money  hav- 
ing been  paid  on  the  5th  June  1 792.  It  appears  also  that  the 
first  and  the  only  actual  settlement  made  on  the  land  in  dis- 
pute, was  by  the  defendant,  or  those  under  whom  he  claims. 
He  had  been  long  in  possession  previous  to  the  bringing  of 
this  ejectment,  had  cleared  thirty  or  forty  acres,  planted  an 
orchard,  and  built  a  dwelling-house  and  barn.  The  plain- 
tiffs derived  their  title  from  a  patent  dated  30th  July  1808, 
founded  on  a  certificate  from  Thomas  Cooper  and  John  M. 
Taylor,  commissioners  for  carrying  into  execution  the  pro- 
visions of  the  "  act  for  offering  compensation  to  the  Penn- 
41  sylvania  claimants  of  certain  lands  within  the  seventeen 
(l  townships  in  the  county  of  Luzerne,  and  for  other  pur- 
u  poses  therein  mentioned,"  passed  the  4th  April  1799,  and 
the  supplementary  acts  passed  the  15th  March  180O,  and 
the  6th  April  1802.  This  certificate  bears  date  the  16th 
January  1 804,  and  sets  forth  that  the  land  was  occupied  by  a 
Connecticut  claimant,  and  actual  settler  there,  before  the  time 
of  the  decree  of  Trenton.  This  assertion  seems  at  first  to  be  in 
direct  opposition  to  the  finding  of  the  jury ;  but  is  rendered 
consistent  with  it  by  the  explanation  afforded  by  the  plain- 

VOL.  VI.  3  N 


1814. 


ENSLIN 

v. 

BOWMAN 
etal. 


466 


CASES  IN  THE  SUPREME  COURT 


1814. 


ENSLIN 

v. 

BOWMAN 
et  al. 


tiff's  counsel.  They  suppose  that  by  the  certificate  of  the 
"  commissioners  it  is  only  meant,  that  the  land  was  occupied 
by  one  who  was  an  actual  settler,  according  to  the  rules 
and  regulations  of  the  Susquehanna  Company.  Now,  accord- 
ing to  those  rules,  a  man  may  be  an  actual  settler  without 
having  ever  been  in  the  state  of  Pennsylvania.  The  Susque- 
hanna Company  sold  by  townships,  some  of  which  contained 
23,000  acres.  The  purchaser  was  to  place  twenty  able  bo- 
died men  on  the  township,  which  being  done,  the  condition 
of  settlement  was  complied  with,  and  the  title  of  the  pur- 
chaser became  perfect. 

In  order  to  determine  whether  the  commissioners  were 
right  in  their  construction  of  the  laws  under  which  they 
acted,  it  will  be  necessary  to  consider  not  only  the  laws 
themselves,  but  certain  well  known  historical  facts  which 
led  to  the  making  of  them. 

Soon  after  the  purchase  made  by  the  late  proprietaries  of 
Pennsylvania  of  the  Indians,  in  the  month  of  November  1768, 
a  number  of  men  from  Connecticut  took  possession  of  a  tract 
of  country  about  Wyoming,  on  the  north  branch  of  Susque- 
hanna, claiming  under  a  deed  from  the  Indians  to  certain 
persons  associated  under  the  name  of  the  Susquehanna  Com- 
pany. These  persons  claimed  adversely  to  the  proprietaries 
of  Pennsylvania^  and  asserted  that  the  country  included  in 
their  deed  was  within  the  bounds  of  the  charter  of  Connec- 
ticut. This  unfortunate  controversy  was  attended  with  riot, 
disorder  and  bloodshed,  which  continued  until  the  com- 
mencement ol  the  revolutionary  war,  when  the  Congress  of 
the  United  States,  alarmed  at  the  consequences  which  might 
result  from  a  dispute  of  so  serious  a  nature  between  two 
powerful  states,  recommended  that  all  acts  of  force  should 
be  abstained  from,  and  each  person  should  remain  in  pos- 
session of  the  land  occupied  by  him,  until  a  proper  season 
should  arise  for  determining  the  matter  on  principles  of  jus- 
tice. This  recommendation  was  complied  with.  The  Connec- 
ticut settlers  were  the  most  numerous,  and  held  possession 
during  the  war,  in  the  course  of  which  they  suffered  great 
hardships  and  lost  many  lives,  being  on  a  remote  frontier 
much  exposed  to  the  attacks  of  the  British  and  the  Indians. 
In  the  month  of  December  1782,  the  cause  between  Penn- 
sylvania and  Connecticut^  having  been  heard  by  a  court  of 


OF  PENNSYLVANIA.. 


467 


commissioners  appointed  under  the  articles  of  confedera- 
tion, was  finally  decided  in  favour  of  Pennsylvania.  From  " 
this  period  the  courts  of  Pennsylvania  must  consider  the 
title  of  Connecticut  of  no  validity,  either  in  law  or  equity, 
except  as  it  may  have  since  been  confirmed  by  our  own  acts 
of  assembly. 

Soon  after  the  decree  of  Trenton,  the  Connecticut  settlers 
seem  to  have  been  proceeded  against  with  undue  severity. 
This  produced  an  act  of  assembly  for  restoring  the  posses- 
sion from  which  they  had  been  forcibly  removed.  The 
council  of  censors  too  made  a  remonstrance  in  their  favour 
in  the  year  1784.  At  length,  on  the  28th  March  1787,  an 
act  of  assembly,  called  the  confirming'  act,  was  passed,  of 
which  it  will  be  necessary  to  take  particular  notice,  as  it  is 
alluded  to  in  the  special  verdict.  The  preamble  of  this  act 
recites  the  decree  of  Trenton,  and  the  settlement  of  a  num- 
ber of  the  inhabitants  of  Connecticut  on  the  disputed  terri- 
tory prior  to  the  said  decree.  It  recites  also  that  the  inter- 
fering claims  of  the  Pennsylvania  and  Connecticut  men  had 
occasioned  much  contention,  expense  and  bloodshed  ;  and 
that  the  assembly  were  desirous  of  putting  an  end  to  these 
evils,  by  confirming  such  of  the  Connecticut  claims  as  were 
acquired  by  actual  settlers  prior  to  the  decree  of  Trenton. 
It  is  then  enacted  that  "  all  the  said  rights  or  lots  now  ly- 
"  ing  within  the  county  of  Luzerne,  which  were  occupied 
"  or  acquired  by  Connecticut  claimants,  who  were  actually 
"settlers  there,  at  or  before  the  termination  of  the  claims  of 
"  the  state  of  Connecticut,  by  the  decree  aforesaid,  and 
"  which  rights  or  lots  were  particularly  assigned  to  the  said 
"  settlers  prior  to  the  said  decree,  agreeably  to  the  regula- 
"  tions  then  in  force  among  them,  be  and  they  are  hereby 
"  confirmed  to  them  and  their  heirs  and  assigns."  It  is  very 
clear,  that  the  only  persons  intended  to  bt-  relieved  by  this 
law,  were  persons  actually  settled  in  the  county  of  Luzerne 
prior  to  the  decree  of  Trenton ;  and  that  the  words  "  agreea- 
"  bly  to  the  regulations  then  in  force  among  them"  refer  not 
to  the  actual  settlement,  but  to  tht  assignment  of  particular 
rights  or  lots  to  particular  settlers.  By  actual  settlers  \ve  un- 
derstand persons  residing  on  the  land.  It  is  a  class  of  peo- 
ple always  favoured  by  the  late  proprietaries,  and  by  the 
state  of  Pennsylvania  ;  and  it  having  been  thought  of  impor- 


18U. 


ENSLIN 

v. 

BOWMAN 
etal. 


468 


CASES  IN  THE  SUPREME  COURT 


1814. 


ENSLIN 

v. 

BOWMAN 
ctal. 


tance  to  define  the  term  settlement  precisely,  it  was  enacted 
'  by  the  act  of  SOth  December  1 786,  (passed  by  the  very  same 
persons  who  made  the  confirming  law)  that  by  a  settlement 
should  be  understood  "  an  actual,  personal,  resident  settle- 
"  ment,  with  a  muni  fest  intention  of  making  it  a  place  of  abode* 
44  and  the  means  of  supporting  a  family,  and  continued  from 
44  time  to  time,  unless  interrupted  by  the  enemy,  or  by  go- 
44  ing  into  the  military  service  of  this  country  during  the 
44  war."  That  persons  of  this  description  should  be  confirm- 
ed in  their  claims,  there  was  some  reason,  because  they  had 
entered  into  possession  while  the  right  was  undecided;  they 
had  all  suffered,  and  many  bled  in  defence  of  the  country. 
But  it  will  be  difficult  to  assign  any  motive,  either  of  jus- 
tice or  policy,  which  should  have  induced  the  legislature  to 
take  away  the  rights  of  their  own  citizens,  in  order  to  make 
way  for  persons  who  had  rendered  the  state  no  service,  but 
on  the  contrary  had  been  the  authors  of  much  disturbance, 
expense  and  vexation.  The  confirming  law  at  the  same  time 
made  compensation  to  the  Pennsylvania  claimants,  who  had 
acquired  titles  before  its  passage,  by  a  grant  of  lands  in 
other  parts  of  the  stite. 

This  law  which  was  made  with  such  beneficent  intentions, 
did  not  prove  satisfactory  to  either  party.  Its  execution  was 
opposed  even  in  the  county  of  Luzerne*  The  commissioners 
were  interrupted  before  they  had  made  much  progress  in 
their  work.  In  consequence  of  this,  their  powers  were  sus- 
pended by  the  act  of  29th  March  1788,  in  which  it  is  said, 
44  that  the  commissioners  had  been  interrupted  in  their  pro- 
44  ceedingsby  the  combinations,  threatenmgs,  and  outrageous 
44  violence  of  certain  lawless  people  in  the  said  county  of 
44  Luzerne,  and  obliged  to  fly  for  the  preservation  of  their 
"lives.**  At  length  the  confirming  law  was  repealed  in 
terms  of  strong  reprobation  by  the  act  of  1st  April  179O,  by 
which  it  was  declared,  that  the  repealed  act  was  4t  unconsti- 
44  tutional  and  of  the  most  dangerous  consequence,'*  The 
opinion  thus  expressed  of  its  unconstitutionality,  was  con- 
firmed by  the  Circuit  Court  of  the  United  States,  in  the  case 
of  Vanhorne's  Lessee  v.  Dorrance.  That  cause  was  removed 
to  the  Supreme  Court  of  the  United  States  by  writ  of  error, 
where  it  was  terminated  by  a  nonpros  suffered  by  the  plain- 
tiff in  error.  It  is  unnecessary  to  enter  now  into  the  consti- 


OF  PENNSYLVANIA. 


469 


rational  question,  because  the  commissioners  under  the  con- 
firming law  were  interrupted  before  they  had  completed  any"" 
business,  and  the  law  itself  was  annulled  by  the  same  autho- 
rity from  which  it  derived  its  existence. 

From  the  29th  of  March  1788  the  Connecticut  claimants 
were  neglected  by  the  legislature  until  the  4th  of  April  1799, 
when  the  act  was  passed  under  which  the  certificate  of  the 
commissioners  was  issued,  on  which  the  plaintiffs  found 
their  title.  It  was  the  object  of  the  act  to  induce  the  Penn- 
sylvania claimants  to  release  their  rights  for  a  moderate 
compensation  in  money,  in  order  to  quiet  the  country  by 
confirming  the  title  of  such  Connecticut  claimants  in  the 
seventeen  townships  of  Luzerne  county,  "  as  were  actually 
"  settlers  there  at  or  before  the  time  of  the  decree  of  Tren- 
u  ton,  and  whose  rights  or  lots  had  been  particularly  assigned 
"  to  them  prior  to  the  said  decree,  agreeably  to  the  regula- 
tions then  in  force  among  them,"  just  in  the  words  of  the 
confirming  law.  In  order  then  to  give  the  commissioners 
jurisdiction,  it  was  necessary,  that  the  person  in  whose  fa- 
vour the  certificate  was  to  be  issued,  or  those  under  whom 
he  claimed,  should  have  been  actually  settled  within  the  seven- 
teen townships  prior  to  the  decree  of  Trenton.  Whether 
there  should  not  also  have  been  d  settlement  on  each  tract 
included  in  the  certificate,  1  give  no  opinion  at  present,  be- 
cause the  special  verdict  finds  no  settlement  of  any  kind 
within  the  seventeen  townships. 

But  it  is  contended  that  the  certificate  of  the  commis- 
sioners is  conclusive  evidence  of  the  truth  of  the  facts  as- 
serted in  it.  Respecting  the  title  under  Connecticut,  it  may 
perhaps  be  conclusive  between  Connecticut  claimants,  be- 
cause the  commissioners  are  authorized  to  decide  between 
them,  although  if  either  party  chooses,  he  may  withdraw  the 
cause  previous  to  their  decision,  and  carry  it  to  the  court  of 
Common  Pleas.  But  if  the  commissioners  are  permitted  to 
make  the  decision,  the  certificate  of  their  clerk  is  declared 
by  the  law  to  be  sufficient  evidence  to  obtain  a  patent  from 
the  land  office.  Touching  the  rights  of  Pennsylvania  claim- 
ants the  commissioners  had  no  power  to  decide.  If  they 
diffrr  among  themselves  the  board  of  property  decides  in 
the  first  instance,  with  liberty  to  the  party  against  whom 
the  decision  is  made,  to  bring  an  ejectment  for  the  purpose 


1814. 


ENSLIN 

r. 

BO\VMAK 
et  al. 


CASES  IN  THE  SUPREME  COURT 


1814. 


ENSLIN 

i>. 
BOWMAN 

etal. 


of  having  the  cause  re-heard  in  the  courts  of  common  law. 
The  Pennsylvania  claimant  never  appears  before  the  com- 
missioners. It  would  be  unjust  therefore,  that  he  should  be 
concluded  by  their  certificate,  nor  is  there  any  thing  in  the 
law  which  favours  such  injustice.  It  is  no  where  said  that 
he  shall  be  concluded. 

It  is  to  be  remarked,  that  the  act  of  4th  April  1799  left  it 
optional  with  the  Pennsylvania  claimant  to  release  or  not, 
and  unless  he  released,  the  commissioners  had  no  power  to 
grant  a  certificate  in  favour  of  a  Connecticut  claimant.  But 
the  act  of  6th  April  1802  went  farther,  and  authorized  the 
commissioners  to  certify  not  merely  such  parts  of  the  tracts 
of  land  claimed  under  the  title  of  the  Susquehanna  company 
as  should  be  released  by  the  Pennsylvania  claimant,  but 
"  the  whole  of  each  tract  claimed  by  a  Connecticut  claimant, 
u  who  should  establish  his  title  thereto  ;n  the  manner  pre- 
"  scribed  by  the  act  of  4th  April '17 '99,"  whether  released  to 
the  Commonwealth  by  the  Pennsylvania  claimant  or  not.  The 
act  then  goes  on  to  provide,  that  such  Pennsylvania  claim- 
ant as  should  not  release  to  the  Commonwealth  under  the 
provisions  of  the  said  act  of  4th  April  1 799,  on  or  before 
the  1st  of  August  1802,  should  be  disabled  from  recovering 
the  land  in  any  action  against  the  Connecticut  claimant  in 
whose  favour  a  certificate  had  been  issued,  but  might  insti- 
tute an  action  against  the  Commonwealth  in  which  he  should 
be  entitled  to  recover  a  just  compensation  for  his  land. 

Hitherto  we  see  that  no  Connecticut  claimant  was  enti- 
tled to  a  certificate,  unless  he  derived  title  through  a  person 
who  was  a  settler  prior  to  the  decree  of  Trenton  ;  nor  could 
any  Pennsylvania  claimant  release  to  the  Commonwealth 
and  demand  compensation,  unless  his  title  accrued  prior  to 
the  said  decree.  But  by  the  act  of  9th  April  1807,  all 
Pennsylvania  claimants  were  let  in  who  had  acquired  title 
prior  to  the  25th  of  March  1787,  (the  date  of  the  confirm- 
ing law)  and  by  the  same  law  it  is  enacted,  "  that  the  com- 
"  missioners  in  examining  the  claims  of  the  Connecticut 
"claimants,  shall  not  require  the  same  lands  to  have  been 
"  occupied  prior  to  the  decree  of  Trenton"  This  last  provi- 
sion may  produce  consequences  more  important  than  per- 
haps were  foreseen  at  the  time  it  was  made,  although  it 
cannot  affect  the  present  certificate  which  was  issued  long 


OF  PENNSYLVANIA. 


471 


before  its  date.  But  what  is  there  in  any  of  these  laws  to 
affect  the  title  of  the  defendant,  which  accrued  subsequent 
to  the  28th  of  March  1787,  and  who  consequently  is  not 
entitled  to  an  action  against  the  Commonwealth  for  the 
recovery  of  compensation  ?  It  is  contended  that  his  right  is 
extinguished  by  the  act  of  6th  April  1802.  But  this  ap- 
pears to  me  to  be  a  position  not  to  be  supported,  because 
the  words  of  that  act  only  embrace  the  case  of  Pennsylvania 
claimants,  who  shall  refuse  or  neglect  to  release  to  the  Com- 
monwealth under  the  provisions  of  the  act  o/"4th  April  1799. 
Now  it  is  clear  that  no  Pennsylvanian  can  release  under  the 
provisions  of  that  act,  whose  title  accrued  subsequent  to  the 
28th  of  March  1787;  therefore  no  such  titles  are  within  the 
meaning  of  the  act  of  6th  April  1802.  Nothing  less  than  the 
most  pointed,  unequivocal  expressions  would  ever  convince 
me,  that  it  was  the  intent  of  the  legislature  to  take  any 
man's  property  without  a  reasonable  compensation  ;  because 
not  only  would  it  be  an  actof  injustice,  but  a  violation  of  the 
constitution,  which  has  prescribed  limits  to  the  legislative 
power.  The  legislature  are  the  judges  of  those  great  occa- 
sions when  it  may  be  expedient  to  break  in  upon  the  rights 
of  private  property  making  just  compensation.  But  to  take 
property  without  compensation  is  beyond  their  power.  Such 
I  take  to  be  the  decided  opinion  throughout  the  United  States; 
and  I  am  confident  that  the  legislature  of  Pennsylvania  will 
never  act  in  contradiction  to  it.  Upon  the  whole  of  this  case 
then  it  appears,  1st,  that  the  defendant  has  a  perfect  title 
by  warrant,  survey  and  patent,  from  the  state  of  Pennsylva- 
nia; and  2d,  that  the  title  remains  unimpaired  by  any 
act  of  assembly.  I  am  therefore  of  opinion  that  the  judg- 
ment should  be  reversed,  and  judgment  entered  on  the  spe- 
cial verdict  for  the  plaintiff  in  error. 

If  as  the  plaintiff's  counsel  seem  to  apprehend,  this  deci- 
sion should  produce  results  distressing  to  the  inhabitants 
of  the  seventeen  townships,  I  shall  be  sorry  for  it.  I  have 
always  wished  for  their  peace,  and  have  done  what  I  could 
to  promote  it,  by  releasing  all  my  interest  in  lands  in  those 
townships.  But  to  a  judge  it  is  only  permitted  to  interpret 
the  law  honestly  and  impartially.  If  when  interpreted,  it  is 
attended  with  inconvenience,  it  is  for  the  higher  powers  to 
provide  a  remedy. 


1814. 


ENSLIN 

v. 

BOWMAN 
etal. 


472 


CASES  IN  THE  SUPREME  COURT 


1814. 


E.NSL1N 
U. 

BOWMAN 

etal. 


YEATES  J.  The  tenth  section  of  the  ninth  article  of  the 
"constitution  of  this  Commonwealth  declares,  that  "no  man's 
"  property  shall  be  taken  or  applied  to  public  use,  without 
"  the  consent  of  his  representatives,  and  without  just  com- 
"• pensation  being  made."  In  the  exposition  of  laws  we  can- 
not suppose  that  the  legislature  have  been  unmindful  of  this 
wise  provision.  Cases  may  undoubtedly  occur,  wherein 
however  sacred  the  rights  of  property  may  be  deemed,  it 
would  be  necessary  for  the  common  welfare,  that  they 
should  bend  to  the  public  interests  in  matters  of  great  na- 
tional concern. 

The  decree  at  Trenton  on  the  30th  of  December  1782, 
grounded  on  the  provisions  of  the  old  confederation,  termi- 
nated the  dispute  between  Pennsylvania  and  Connecticut  as 
to  the  territory  claimed  by  the  latter ;  but  the  commission- 
ers recommended  the  case  of  actual  settlers,  under  the  title 
of  the  Susquehanna  Company,  to  the  consideration  of  the 
Pennsylvania  legislature  j  and  the  justiqe  and  equity  of  the 
claims  of  those  settlers,  was  also  strongly  reported  by  the 
council  of  censors  in  1784.  Hence  arose  the  confirming  act 
of  28th  March  1787,  upon  which  the  defendants  in  error 
confidently  rely,  as  plighting  the  faith  of  this  government 
to  the  Connecticut  claimants.  To  this  it  is  answered,  that 
this  act  has  been  solemnly  determined  in  April  1795,  in 
Vanhorne's  Lessee  v.  Dorrance,  2  Dull.  3O4,  32O,  to  be  un- 
constitutional and  void,  that  it  was  invalid  from  the  begin- 
ning, had  no  life  or  operation,  and  was  precisely  in  the 
same  state,  as  if  it  had  not  been  made.  It  was  suspended 
by  the  act  of  29th  March  1788,  and  finally  repealed  by  the 
law  passed  on  the  1st  of  April  1790. 

If  the  law  of  March  1787  was  in  full  force,  I  should 
adopt  the  construction  of  it,  as  contended  for  by  the  plain- 
tiffs' counsel,  that  the  actual  settlers  whose  claims  were 
intended  to  be  confirmed  thereby,  were  such  persons  only, 
as  had  acquired  a  title  by  actual  settlement,  prior  to  the 
determination  of  the  dispute  between  the  two  states,  as 
defined  by  our  law  of  the  30th  December  1786,  and  enacted 
by  the  same  legislature.  I  take  this  to  be  the  true  meaning 
of  the  expressions  made  use  of,  most  conformable  to  the 
reason  and  policy  of  the  act,  and  the  spirit  which  dictated 
it.  The  object  of  the  lawgivers  was  not  to  recognize  the 


OF  PENNSYLVANIA. 

validity  of  the  titles  held  under  the  Susquehanna  Company, 
but  to  quiet  the  possessions  of  those  who  were  the  real  " 
occupants  of  lands  under  that  claim. 

The  certificate  signed  by  the  commissioners  on  the  16th 
of  January  1804,  brings  the  case  of  James  Stewart  the 
defendant's  testator,  within  the  words  of  the  different  laws 
of  4th  April  1799,  15th  March  180O,  and  of  6th  April  1802. 
But  it  is  found  by  the  special  verdict,  that  neither  he  nor 
any  one  under  whom  he  claimed,  ever  improved,  lived  or 
settled  upon  any  part  of  the  land  in  question,  and  that  the 
first  actual  settlement  made  thereon,  was  under  the  warrant 
granted  to  Sarah  Hollenback*  by  the  Commonwealth  of 
Pennsylvania  on  the  lOth  of  May  1792. 

This  introduces  the  question,  whether  the  certificate  of 
the  commissioners  is  conclusive  evidence  of  the  facts  stated 
therein,  against  one  claiming  the  same  lands  under  a  Penn- 
sylvania title  ? 

It  is  admitted,  that  no  express  provision  is  to  be  found 
in  any  law  ascribing  to  these  certificates  such  conclusive 
character ;  but  it  has  been  urged  on  the  part  of  the  defen- 
dants, that  it  necessarily  arises  from  the  act  of  6th  April 
18O2.  To  this  I  answer  that  the  duties  of  the  commission- 
ers are  specially  pointed  out  by  the  act  of  4th  April  1799. 
They  decide  merely  between  the  Connecticut  claimants,  who 
by  the  eleventh  section  are  allowed  an  appeal  before  they 
should  make  their  decision.  Such  appeal  is  not  given  to  per- 
sons claiming  under  Pennsylvania  titles  ;  they  are  not  even 
heard  before  the  commissioners.  How  then  can  they  be 
bound  finally  by  acts,  to  which  they  are  neither  parties  nor 
privies,  which  it  was  not  in  their  power  to  contest  ?  This 
would  be  rank  injustice.  I  fully  agree,  that  the  certificates 
given  by  judicial  officers,  on  whom  arduous  duties  have 
been  imposed,  are  prima  facie  evidence,  and  may  be  admit- 
ted in  suits  against  Pennsylvania  claimants.  They  should 
be  treated  with  due  respect,  but  are  open  to  proof  by  per- 
sons entitled  to  lands  under  Pennsylvania  rights,  although 
conclusive  between  claimants  unner  the  Connecticut  title,  if 
unappealed  from.  The  same  distinction  has  uniformly  pre- 
vailed, when  the  certificates  of  the  Virginia  commissioners 
have  been  admitted  to  the  jury  in  contests  between  persons 
claiming  lands  under  either  state. 

VOL.  VI.  3  O 


437 


1814. 


ENSLIN 

v. 

BOWMAN 
etal. 


474 


CASES  IN  THE  SUPREME  COURT 


1814. 


The  plaintiff  in  error  here  claims  under  a  regular  warrant 
from  Pennsylvania,  dated  10th  May  1792,  upon  which  the 
purchase  money  has  been  paid,  a  survey  made  on  the  9th  of 
December  1793,  and  a  patent  granted  to  him  on  the  24th  of 
February  1 798.  He  and  those  under  whom  he  claims,  have 
made  the  first  actual  settlement  on  the  lands  in  question, 
first  erected  a  cabin,  planted  an  orchard,  then  built  a  new 
house  and  barn,  cleared  between  thirty  and  forty  acres  of 
land,  and  have  been  in  the  constant  possession  of  the  pre- 
mises. Having  acquired  a  title  subsequent  to  28th  March 
1787,  he  can  obtain  no  compensation  under  the  provisions 
of  the  act  of  9th  April  18O7,  if  he  is  doomed  to  be  a  sacri- 
fice to  the  public  tranquillity.  Why  then  is  he  to  be'dispos- 
sessed  of  his  right?  What  law  has  he  offended?  It  is  not 
correct  to  assert,  that  this  Commonwealth  by  any  legislative 
act,  acknowledged  the  right  of  Connecticut  or  of  the  Sus- 
quehanna  Company,  to  grant  lands  within  the  charter  boun- 
dary of  Pennsylvania.  I  can  discover  no  law  wherein  the 
validity  of  such  titles  has  been  recognized. 

The  intention  of  the  legislature  in  enacting  the  law  of 
28th  March  1787,  is  fully  disclosed  in  its  preamble.  It  re- 
cites that,  *'  whereas  before  the  determination  of  the  claim  of 
"  Connecticut^  a  number  of  its  inhabitants  with  their  asso- 
"  ciates,  settled  upon  and  improved  divers  tracts  of  land 
"  lying  on  and  near  the  north  east  branch  of  the  river  Sus- 
"  quehanna,  and  the  waters  thereof,  and  now  within  the 
**  county  of  Luzerne ;  and  whereas  parts  of  the  same  lands 
tc  have  been  claimed  under  titles  derived  from  the  late  pro- 
"  prietaries  of  Pennsylvania,  and  those  interfering  claims 
"  have  occasioned  much  contention,  expense,  and  blood- 
"  shed,  and  this  assembly  being  desirous  of  putting  an  end 
"  to  those  evils  by  confirming  such  of  the  Connecticut  claims 
"  as  were  acquired  by  actual  settlers  prior  to  the  determi- 
*'  nation  of  the  said  dispute,  agreeably  to  a  petition  of  a 
"number  of  the  said  settlers,  and  by  granting  a  just  com- 
"  pensation  to  the  Pennsylvania  claimants,  &c."  It  then 
proceeds  to  make  provision  for  these  professed  objects  of 
restoring  peace  and  good  order,  and  of  preventing  the  effu- 
sion of  human  blood.  The  proceedings  of  the  commissioners 
having  been  interrupted  at  Wilkesbarre  ^December  1787, 
it§  operation  was  suspended  in  March  1788,  and  finally 


OF  PENNSYLVANIA. 


475 


repealed  in  terms  of  strong  condemnation  by  an  act  passed 
on  the  1st  o!  April  179O,  u  whereby  all  proceedings  under  " 
"the  act  of  28th  March  1787  were  declared  void,  and  all 
"  titles  and  claims  under  it  were  revested  in  the  former 
"  owners." 

Within  a  period  somewhat  exceeding  two  years  from 
the  time  of  the  repeal  of  the  first  act  of  1787,  when  the  tide 
of  public  opinion  manifested  by  a  strong  act  of  the  legisla- 
ture, had  evidently  begun  to  run  in  a  different  direction, 
the  warrant  was  taken  out  by  Sarah  Hollenback,  and  an 
actual  settlement  took  place  on  these  lands.  N  >  man,  how- 
ever prudent,  could  foresee  what  was  afterwards  done  by 
the  laws  of  4th  April  1799,  15th  March  180O,  6th  April 
1802,  4th  April  1805,  and  9th  April  1807.  The  lands  in  the 
seventeen  townships  in  Luzerne  county  had  not  been  exclu- 
sively set  out  and  reserved  for  the  Connecticut  claimants, 
and  the  law  which  had  confirmed  the  occupation  of  certain 
of  them  under  particular  modifications,  had  been  repealed* 
I  see  no  ground  to  brand  any  person  with  the  character  of 
a  speculator,  or  of  having  acted  in  a  manner  unbecoming  a 
good  citizen,  who  has  taken  out  a  warrant  for  vacant  lands 
then  not  actually  settled  by  Connecticut  claimants  ;  nor  can  I 
discover  any  impropriety  in  such  person  appealing  to  the 
laws  of  his  country  for  the  protection  of  his  possession, 
until  he  has  received  a  full  equivalent  for  his  title  thus 
acquired. 

Upon  the  whole  matter  I  am  of  opinion,  that  the  judg- 
ment of  the  Cou  t  of  Common  Pleas  of  Luzerne  county 
be  reversed,  and  that  judgment  for  the  plaintiff  in  error  be 
rendered  on  this  special  verdict. 

BRACKENRIDGE  J.  It  is  not  found  by  the  special  verdict, 
that  the  lot  in  question  "  -was  occupied  by  a  Connecticut 
"  claimant  and  actual  settler  there  before  the  time  of  the  decree 
u  of  Trenton,  and  was  particularly  assigned  to  such  actual 
"  settler  prior  to  the  said  decree  agreeable  to  the  regulations 
"  then  in  force  among  the  settlers"  But  it  is  certified  by  the 
commissioners  duly  appointed  &c.,  under  an  act  entitled  &c., 
that  it  was  so  occupied  &c.  as  in  the  certificate  of  the  said 
commissioners  specified.  But  can  this  certificate  be  travers- 
ed, or  the  truth  of  it  called  in  question  ?  Not,  I  should  take 


1814. 


ENSLIN 

v. 

BOWMAN 
etal. 


476 


1814. 


KNSI.IN 

v. 
BOWMAN 

et  al. 


CASES  IN  THE  SUPREME  COURT 

it  as  at  present  advised,  by  the  Commonwealth,  who  has  ap- 
" pointed  these  commissioners,  uncl  may  be  considered  as 
bound  by  their  proceedings.  But  can  it  be  said  that  an  indi- 
vidual, not  a  party  to  their  proceedings,  and  who  has  an 
adverse  claim  or  right,  shall  be  bound  f  Shall  not  the  truth 
of  the  case  be  shewn  ?  It  may  be  considered  in  the  nature  of 
an  inquisition  of  office  on  the  part  of  the  state  and  the  Con- 
necticut claimant,  but  shall  not  affect  third  persons  who 
claim  a  paramount  or  adverse  interest. 

It  is  found  by  the  special  verdict,  that  the  lot  in  question 
was  surveyed  in  the  summer  of  1787,  and  u  that  no  person 
"  was  settled  then  on  the  lot."  Non  constat,  but  that  some 
one  under  whom  the  plaintiff  claims  had  occupied  and  was 
settled  on  it  before  the  decree  of  Trenton,  and  therefore  the 
special  verdict  does  not  falsify  the  certificate,  which  cannot 
but  be  admitted  to  be  prima  facie  evidence .  Upon  this  point 
alone  I  find  a  difficulty  in  saying  that  the  j  udgment  should  be 
set  aside ;  for  a  temporary  non  occupance  may  have  been  ow- 
ing to  the  falling  in  the  war,  or  other  causes,  and  that  pre- 
sumption of  abandonment  might  be  rebutted  by  showing  the 
truth.  As  to  the  ground  upon  which  the  plaintiff  has  put  the 
case,  it  is  totally  untenable ;  at  least  the  ground  upon  which 
his  counsel  has  argued  it  is  not  to  be  sustained.  He  seems 
to  consider  the  commissioners  as  having  had  a  power  to 
proceed  in  ihe  case  of  a  lot  or  a  piece  of  ground,  not  occupied 
by  a  Connecticut  claimant,  or  settled  before  the  decree. 
Whereas  it  could  not  but  have  been  the  first  object  of  their 
enquiry,  in  order  to  ascertain  whether  they  had  jurisdiction. 
A  constructive  occupancy  or  settlement  was  unknown  to  the 
laws  or  usages  of  Pennsylvania,  and  why  should  it  be 
known  in  this  case  ?  Nor  could  an  actual  occupancy  and  set- 
tlement be  considered  as  attaching  to  more  than  to  the  usual 
extent  of  3OO  acres  with  the  allowance  &c. 

What  was  the  foundation  of  the  interposition  of  the  legis- 
lature ?  Not  a  grant  from  Connecticut  under  a  pretended  or 
alleged  extent  of  charter.  Not  any  till  derived  from  a 
Susquehanna  company  under  an  alleged  purchase  from  the 
Indians.  It  was  a  moral  obligatioi  ,  and  I  have  always 
considered  it  a  moral  obligation,  to  relieve  the  mistaken 
and  misled  inhabitants,  who  had  settled  on  these  lands 
under  an  idea  of  right,  and  where  the  situation  of  things, 
and  the  nature  of  the  case,  furnished  a  ground  of  mistake, 


OF  PENNSYLVANIA. 


477 


so  that  they  were  not  to  be  considered  absolutely  in  the  light 
of  voluntary  trespasses,  more  especially  as  Indian  hostili-" 
ties,  incited  by  the  general  enemy  with  whom  we  were  at 
War,  were  combatted  by  those  very  settlers  at  their  out  posts, 
where  many  of  them  fell,  and  at  whose  perils  and  by  whose 
sufferings  the  interior  of  the  state  had  been  so  much  defend- 
ed. These  were  the  considerations  of  the  recommendation 
of  the  council  of  censors,  the  act  of  1787,  and  all  the  suc- 
ceeding acts  that  have  taken  place  on  the  subject ;  to  relieve 
the  actual  settlers  and  put  them  on  the  same  footing  with 
our  actual  settlers,  in  other  parts  of  the  state,  who  were  pro- 
tected from  office  rights,  and  by  a  usage  known  to  our  laws, 
both  as  to  the  nature  of  the  settlement  and  the  extent  of  it. 
Such  a  thing  as  twenty  settlers  claiming  six  miles  square,  and 
allotting  all  within  it  to  themselves  or  to  others  who  might 
come  after  them,  and  to  whom  they  might  dispose  of  this 
territory,  was  never  heard  of,  and  it  could  not  be  within  the 
meaning  of  the  legislature.  "  Rules  and  regulations  amongst 
u  the  settlers  or  Susquehanna  company"  "-here  that  word 
is  used,  could  mean  nothing  more  than  the  allotment  of  their 
portions,  shares  or  half  shares,  the  locus  in  quo  of  their  set- 
tlements, the  extent  and  boundaries,  subjf  ct  still  to  our  ideas 
of  quantity  to  any  settler,  if  the  allotment  should  exceed. 
Constructive  settling,  or  allotment  to  those  who  had  never 
settled,  was  absurd,  and  would  be  countenancing  a  specula- 
tion that  was  inimical  to  actual  settlements,  and  the  occupan- 
cy of  the  country.  At  least  occupancy  and  settlement  under 
this  idea,  and  in  this  way,  was  never  meditated,  or  in  the 
view  of  appointing  commissioners  with  any  powers  whatever. 
Were  it  not  that  it  is  found  by  the  special  verdict,  that  no 
settlement  had  been  made  prior  to  the  occupancy  of  the  de- 
fendant, a  venire  de  novo  might  be  awarded  with  a  view  to 
give  the  plaintiff  an  opportunity  to  shew  if  he  can,  that  ani 
occupancy  of  the  lot  in  question  did  exist  before  the  decree 
of  Trenton,  and  that  he  has  succeeded  to  that  possession, 
as  evidence  of  which  I  will  admit  the  certificate,  but  not  as 
the  foundation  of  the  claim.  A  settlement  must  be  establish- 
ed. Having  proved  an  original  occupancy  before  the  decree 
of  Trenton,  the  certificate  may  be  evidence  of  the  right  de- 
rived to  him,  as  the  mesne  conveyances  may  be  considered 
as  having  been  delivered  up  to  the  commissioners  ;  and  this 


1814. 


ENSLIN 

v. 
BOWMAN 

et  al. 


CASES  IN  THE  SUPREME  COURT 


1814. 


ENSLIN 

v. 

BOWMAN 
etal. 


is  what  is  meant  I  presume  by  the  title  deeds  &c.  delivered 
up.  For  what  other  papers  would  there  be  than  these,  the 
vouchers  of  transmission  and  the  possession  handed  over, 
since  there  is  no  other  kinds  of  deeds  that  could  have  been 
contemplated,  no  kind  of  grant  being  acknowledged  under  the 
charter  of  Connecticut,  or  Indian  title  to  these  lands,  or  the 
lot  which  is  the  object  of  the  ejectment  in  this  case. 

But  it  being  found  by  the  special  verdict  that  no  settle- 
ment had  been  at  any  time  before  the  possession  of  the  de- 
fendant, excludes  the  above  considerations  as  to  the  award- 
ing a  venire  on  the  reversal  of  this  judgment,  and  to  which 
reversal  I  accede  in  this  case. 

Judgment  reversed. 


Sunbury, 
Saturday 
June  18. 


6b  478 
9s  r  22 
3 1  409 
.  6    296 

DRUM  against  the  Lessee  of  SIMPSON.   J  *°» 

oo       11*7 

IN  ERROR.  |  74    314 

A  trustee,  who  rTTiHJS  was  an  ejectment  commenced  in  April  1805,  in  the 
plaintiff  in  eject-  -*•  Common  Pleas  of  Northumberland,  for  a  house  and  lot 
wh-ness1Sforeth^d  m  tne  town  °f  Selirfs  Grove,  the  title  to  which  it  was  agreed 
defendant  to  shew  was  at  one  time  in  a  certain  George  Glass.  Glass  made  a 

that  the  real  trust  .        .        ,.     ,  .  .  ,         „        ,        . 

is  different  from    parol  sale  of  the  premises  to  Adam  Speck,  who  in  the  year 

the^nveyanee    1 796»  made  a  like  sale  to  Charles  Drum  the  defendant.   On 

Declarations     the  1st  July  1799,  Glass  by  order  of  Drum,  and  in  conside- 

madeby  the  gran-        .  r^in  i          n-  r>        .  i 

tor  to  the  grantee,  ration  ol  2O  dollars,  conveyed  to  Simon  Snyder,  who  on  the 
t£nrofhaedeedCof  13tn  ^ovem^er  18O4,  in  consideration  of  one  dollar,  convey- 
trust,  but  before  ed  to  the  lessor  of  the  plaintiff  in  trust  for  Anthony  Charles 

the  grantee  had     „  ,.  .     .  _  ..  .    .  _ 

accepted  it,  are   Seltn  and  Agnes  Sean  as  joint-tenants  in  fee. 

evidence  to  alter 
or  contradict  the 

t™81-  The  defence  of  Drum  beinjr  that  he  had  an  equitable  es- 

Copy  of  a  can-  .       ,  .  t    i          i  em 

celled  bond  in  the  tate  in  the  premises,  and  that  the  conveyance  irom  Glass  to 


r    Snyder  and  from  Snyder  to  Simpson  was  really  in  trust  to 
notice  and  refusal  secure  a  small  debt  due  from  Drum  to  the  estate  of  Anthony 

to  produce  the       „,.         L       i   •     » «•       »  ••  •  i         i«-i 

original,  good  oelm,  the  plaintiff,  after  giving  notice  to  the  defendant  to 
^ttenrCseconSnedProduce  the  original  which  had  been  seen  cancelled  in  his 
in  the  condition,  hands,  offered  in  evidence  a  copy  of  a  bond  dated  29th  Au- 
shewing  how  the  gust  1796,  from  the  defendant  to  Frederick  Antes^'m  the 
10  bC  Penalty  of  3000/.,  by  which  the  defendant,  being  about  to 
marry  Catharine  the  widow  of  Anthony  Selin,  bound  himself 


OF  PENNSYLVANIA. 


479 


to  convey  among  other  things  the  lot  in  dispute,  in  trust  for 
her  children  by  the  said  Anthony. 

This  evidence  was  objected  to  by  the  defendant,  and  ad- 
mitted by  the  Court,  who  sealed  a  bill  of  exceptions. 

The  defendant  proved  that  he  had  expended  a  thousand 
dollars  in  building  a  house  on  the  premises ;  and  that  in  a 
suit  between  the  heirs  of  Seltn  and  himself,  decided  after 
this  suit  was  brought,  an  award  for  175/.  had  been  made  in 
his  favour.  He  then  offered  to  prove  by  the  oath  of  Jere- 
miah Simpson,  the  lessor  of  the  plaintiff,  who  was  in  Court 
willing  to  be  examined,  that  the  deed  of  the  13th  November 
1804,  from  Simon  Snyder  to  him,  uwas  drawn,  and  signed 
"  by  the  said  Simon,  without  the  knowledge  or  consent  of 
"  the  said  Jeremiah;  that  he  had  no  knowledge  of  the  same, 
"  or  of  the  trust  therein  contained,  until  the  said  Simon  Sny- 
"  der  brought  the  same  deed  to  him  the  said  Jeremiah  to  be 
"  recorded  in  September  1805,  he  being  at  that  time  recor- 
"  der  of  Northumberland  county  ;  that  a  conversation  then 
*l  and  there  was  held  between  the  said  Simon  and  the  said 
"  Jeremiah,  wherein  the  said  Simon  declared  that  the  deed 
'*  aforesaid  was  not  intended  to  injure  Charles  Drum,  but 
"  rather  to  serve  him,  and  that  the  property  described  in  said 
u  deed  was  the  property  of  said  Drum,  subject  to  a  certain 
"  small  sum  due  to  the  estate  of  Anthony  Selin."  He  further 
offered  to  prove,  by  the  same  witness,  "  that  this  ejectment 
"  was  brought  without  his  knowledge,  and  that  he  never 
"  would  have  consented  to  let  his  name  be  used,  for  any 
"other  purpose  than  to  enforce  the  payment  of  the  sum  so 
"  claimed." 

This  evidence  was  also  objected  to,  and  refused  by  the 
Court,  who  sealed  a  second  bill  of  exceptions. 

Hall  for  the  plaintiff  in  error. 

The  bond  from  Drum  to  Antes  was  first  of  all  seen  can- 
celled in  possession  of  the  obligor;  from  which  the  pre- 
sumption was,  that  it  had  been  cancelled  by  consent  of  all 
the  parties  interested,  and  therefore  not  legal  evidence.  It 
would  have  been  essential  to  shew  how  cancelled,  before  the 
original  if  produced  would  have  been  evidence ;  and  that 
proof  should  therefore  have  preceded  the  offer  of  the  copy. 
The  Court  erred  in  admitting  it. 


±814. 


DRUM 

•p. 

Lessee  of 
SIMPSON. 


480 


CASES  IN  THE  SUPREME  COURT 


1814. 


DRUM 

v. 

Lessee  of 
SIMPSON. 


Simpson's  evidence  was  clearly  admissible.  Parol  evidence 
"is  always  admitted  to  defeat  fraud  or  explain  a  trust.  Thyn 
v.  Thyn  (a).  In  this  Court  it  has  been  resorted  to,  to  shew 
that  a  person  who  obtained  a  deed,  did  it  under  a  promise 
to  make  a  settlement,  and  the  party  claiming  under  the  set- 
tlement as  it  ought  to  have  been  made,  recovered.  Thomp- 
son v.  White  (b).  There  was  no  objection  therefore  from 
the  evidence  being  parol.  Nor  was  there  from  the  character 
of  the  witness.  A  trustee  is  considered  in  equity  as  having 
no  interest,  and  is  examined  every  day.  Fotherby  v.  Tate 
(c),  Armeter  v.  Swanton  (</),  Man  v.  Ward  (i).  So  it  must 
be  in  our  courts.  He  has  been  received  as  a  witness,  to  prove 
misrepresentations  made  to  him,  in  consequence  of  which 
he  executed  a  deed,  and  the  deed  was  set  aside.  Scroggs  v. 
Scroggs  (y).  He  may  therefore  be  permitted  to  prove  re- 
presentations made  to  him  in  consequence  of  which  he  ac- 
cepted the  trust,  and  permitted  the  ejectment  to  proceed  in 
his  name.  The  declarations  of  Simon  Snyder  were  good 
evidence,  because  there  being  no  trust  declared  in  Glasses 
deed  to  Snyder,  nor  any  evidence  what  that  trust  was,  Se- 
lin's  heirs  would  be  bound  by  Sny tier's  declarations  before 
Simpson  had  accepted  the  deed. 

Duncan  contra. 

The  bond  duly  executed  was  evidence  to  shew  an  interest 
in  Selirfs  children,  and  therefore  was  proper  to  rebut  the 
equity  alleged  by  the  plaintiff,  and  to  set  up  one  in  the  ces- 
tuy  que  trusts  in  the  deed  to  Snyder.  How  it  came  to  be 
cancelled  was  to  be  shewn  by  him  who  had  it  cancelled  in 
his  possession.  If  he  would  give  no  evidence  to  the  point, 
the  jury  would  have  inferred  that  he  cancelled  it  himself. 

The  declarations  of  Simon  Snyder  were  inadmissible  for 
two  reasons,  first  because  they  were  made  nearly  a  year  af- 
ter execution  of  the  deed,  and  went  to  contradict  the  trust 
declared  in  that  instrument.  Secondly,  because  no  act  or  de- 
claration of  a  trustee  can  affect  the  principal.  Henry's  Les- 
see v.  Morgan  (g).  If  any  thing  he  could  say  would  have 


(a)  1  Yen.  296. 
(A)  l.Datf.426. 
(c)  3  Atk.  604. 


(d)  JLmbl.  393. 
fe)  2  Jttk.  22.8. 


(/)  JLmbL  272. 
(,§•)  2  Sinn.  497 


OF  PENNSYLVANIA.  481 

been  competent  evidence,  he  should  have  been  sworn  as  a        1814. 
witness.  DRUM 

TILGHMAN  C.  J.    After   stating  the  facts,  delivered  his     Lessee  of 
f  .,  SIMPSON. 

opinion  as  follows. 

The  first  point  for  our  consideration  is,  whether  the  copy 
of  the  bond  offered  by  the  plaintiff  was  evidence.  If  the 
original  bond  would  have  been  evidence,  the  copy  was  so, 
because  the  original  was  traced  to  the  hands  of  the  defen- 
dant who  had  notice  to  produce  it.  It  is  said  indeed  that 
the  original  would  not  have  been  evidence,  because  it  was 
cancelled  ;  but  that  is  no  reason  why  it  should  not  go  in  evi- 
dence, because  it  might  be  a  question  how  it  came  to  be 
cancelled.  Possibly  Drum  got  hold  of  it,  and  cancelled  it 
without  authority  ;  and  if  so,  it  would  have  the  same  force 
as  if  uricancelled.  This  was  a  matter  for  the  consideration 
of  vhe  jury.  Although  the  legal  title  of  the  property  in  dis- 
pute was  in  the  lessor  of  the  plaintiff,  yet  both  the  children, 
of  Selin  and  the  defendant  Drum,  thought  it  necessary  to 
go  into  the  equity  of  the  case,  and  both  claimed  an  equita- 
ble interest  in  the  premises.  It  was  therefore  material  to 
shew  that  Drum  had  agreed  to  secure  this  lot  to  Mrs.  Selin's 
children  by  her  first  husband.  On  this  point  I  can  see  no 
difficulty.  The  Court  of  Common  Pleas  were  clearly  right 
in  their  opinion. 

The  next  exception  was  founded  on  evidence  offered  by 
the  defendants  and  rejected  by  the  Court. 

The  circumstance  of  Simpson's  being  a  trustee  and  lessor 
of  the  plaintiff,  was  not  sufficient  for  the  rejection  of  his 
testimony.  It  is  said  by  lord  Hardwicke  in  Fotherby  v.  Tatet 
3  Atk.  604,  that  a  trustee,  though  he  has  the  legal  estate,  is 
considered  as  having  no  interest,  and  is  examined  by  order 
of  the  Court  of  Chancery  every  day.  We  have  acted  uni- 
formly on  this  principle  in  our  courts  of  law.  The  name  of 
the  trustee  is  used  by  the  ceslui  que  trust,  who  is  liable  for 
the  costs  of  suit,  and  is  in  fact  the  only  person  interested. 

But  other  objections  are  made  to  Simpson's  testimony.  It 
is  said  that  a  writing  is  not  to  be  destroyed  or  altered  by 
parol  testimony,  and  that  the  declarations  of  Snyder,  made 
after  he  had  executed  the  deed,  ought  not  to  be  received.  If 
these  declarations  had  been  made  after  the  deed  had  taken 

VOL.  VI.  .">  P 


482 


CASES  IN  THE  SUPREME  COURT 


1814. 


DRUM 

v. 

Lessee  of 
SIMPSON. 


complete  effect,  I  think  they  would  not  have  been  evidence. 
But  this  is  a  very  special  case.    At  the  time  that  Snyder  is 
supposed  to  have  made  the  declarations  to  Simpson,  no  con- 
sent had  been  given  by  Simpson  to  accept  the  trust,  and  it 
does  not   appear  that  without  these  declarations   he  would 
have  consented  to  accept  it.     The  deed  therefore  was  not 
complete.     A  man  cannot  be  compelled  to  accept  a  trust 
against  his  will.  This  conversation  therefore  between  Sny- 
der and  Simpson,  is  substantially  the  same  as  if  it  had  hap- 
pened just  before  the  execution  of  the  deed  j  and  it  has  been 
long  settled  in  this  Court,  that  parol  evidence  may  be  re- 
ceived to  prove  what  passed  before  and  at  the  time  of  the 
execution  of  the  deed,  if  the   party  offering  the  evidence 
alleges  fraud  or  mistake  in  the  transaction.   I  refer  particu- 
larly to  the  case  of   Thompson  v.  White ^  and  the  authorities 
there  cited,  4  DalL  426.    In  another  point  of  view  likewise 
the  evidence  was  admissible.    The  deed  from  George  Glass 
to  Simon  Snyder  is  a  conveyance  of  the  legal  estate,  in  con- 
sideration of  twenty  dollars,  without  mention  of  any  trust ; 
neither  does  it  appear  by  any  positive  evidence,  that  there 
was  a  secret  trust  attending  this  deed.     Then  the  heirs  of 
Selin  claiming  under  Snyder ,  would  be  affected  by  his  de- 
clarations made  before  his  conveyance  to  Simpson.    But  for 
the  reasons  I  have  given,  Snyder* s  declarations  are  to  be 
considered  as  having  been  made  before  the  execution  of  the 
deed.  They  are  therefore  evidence.  The  case  of  Scroggs  v. 
Scroggs,  Ambler  272,  bears  a  strong  resemblance  to  the 
present.  Power  was  given  to  Scroggs  to  make  an  appoint- 
ment in  favour  of  such  of  his  children  as  he  pleased,  with 
the  consent  of  two  trustees.  He  prevailed  on  the  survivor  of 
these  trustees  to  join  in  a  deed,  making  an  appointment  in 
favour  of  his  youngest   child,  through  false  suggestions, 
injurious  to  the  character  of  the  eldest.     The  trustee  was 
admitted  as  a  witness  to  give  parol  evidence  of  this  misre- 
presentation, and  the  appointment  was  set  aside.     Now  the 
evidence  offered  by  the  defendant,  tended  to  the  proof  of  a 
misrepresentation,  in  consequence  of  which  Simpson  was 
induced  to  accept  the  trust.  It  appears  to  me  therefore  that 
it  ought  to  have  been  received.     Upon  the  whole  I  am  of 
opinion,  that  the  decision  of  the  Court  of  Common  Pleas  was 
right  on  the  first  exception,  but  wrong  on  the  second.    The 


OF  PENNSYLVANIA. 


483 


judgment  must  therefore  be  reversed,  and  a  venire  facias  1814. 

de  novo  awarded*  DRUM 

v. 

YEATES  J.  was  sick  during  the  argument,  and  gave  no  Lessee  of 

opinion.  SXMPSON. 

BRACKENRIDGE  J.  concurred  with  the  Chief  Justice. 

Judgment  reversed. 


Lessee  of  ANTHONY  SNYDER  and  others  against 
SIMON  SNYDER. 


IN  ERROR. 


Sunbury> 

Saturday, 
June  18. 

A  husband  can- 


THIS  was  an  eiectment  in  the  Common  Pleas  of  North' 
j  r  i_     not  be  a  »'"lt;SS, 

umberlana  county,  tor  171   acres  ot   land,  which  the  where,  in  conse- 

lessors  of  the  plaintiff  claimed    as  the   children  of 
Snuder  deceased. 

,,  .,,,  ,  ,..~  *     •  i      •       a 

Upon  the  trial  below,  the  plaintiff  proved  title  in 
Snyder  at  the  time  of  his  decease,  and  there  rested 


Case. 


she*  that  half  an 
acre  of  land  inclu- 


..,-_,        ,    f       . 

On  behalf  of  the  defendant,  who  was  merely  the  tenant  ded  in  a  deed  by 
in  possession,  and  claimed  no  title  personally,  the  real  dis-  ^Tex'ceptS  ou 
pute  being  between  the  lessors  of  the  plaintiff,  and  the  chil-  °f  the  estate  at 

r     A      ,  r,  }•  nii  i  •         i  t      the  time  of  sale. 

dren  ot  Anthony  oe?«n,  to  all  whom  he  stood  in  the  rela- 
tion  of  uncle,  the  following  case  was  then  exhibited  : 

Upon  the  19th  May  1787,  letters  of  administration  to  theder  execution  the 

revtr.,.  ,.  iiri  bod\    'n(!  lands  of 

estate  or  John  bnyder  issued  to  his  brother  the  defendant,  a  third  person. 
to  his  widow  Mary  Snyder,  and  to  her  brother-in-law  John  Jiuilfbe  .iSim 
Miller.     An  original  inventory  amounting  to  ISO/.  55.  \Qd.  bJ  the  records. 

i  r  rr  i  j    •         i       i         i       •   •  r     A  question  can- 

was  shewn  trom  the  office,  endorsed  in  the  handwriting  otnot  be  put  to  a 
the  register  at  that  time,  "taken  and  appraised  19th  May  **£%%£?$£ 
"1787,  by  Albright  Swine  ford  and  George  Weurick*  dulyanswer  which  tlie 

J  party  wishes,  e.g. 
'•  did  he  assign  to 
'  you  as  a  reason 
'  why  he  would 
:  not  bid  more 
'  for  the  isle  of  Q, 
'  that  he  could 
'  buy  fVs  land 
1  for  &c." 

\  sale  by  order 
_  of  Orphans'  Court 

to  the  knowledge  ot   the  petitioners,  were  642/.,  and  the  is  not  conclusive 

until  reversed  on 
appeal,  but  may  be  questioned  in  an  ejectment 


u  qualified  for  that  purpose."  On  the  1st  January  1788, 
a  petition  in  the  handwriting  of  the  defendant  was  prefer- 
red to  the  Orphans'  Court,  to  which  he  subscribed  his  own 
name  and  those  of  the  other  administrators,  setting  forth 
the  insufficiency  of  John  Snyder1  s  peisonal  estate  to  pay  the 
debts,  and  maintain  the  children;  that  the  debts,  then  come 


484 


CASES  IN  THE  SUPREME  COURT 


SNYDER 
etal. 

v. 
SNYDER. 


1814.  credits  (including  220/.  the  amount  of  the  goods  sold  at 
Lessee  of  vendue)  43O/.,  leaving  a  deficiency  of  212/.,  and  praying  an 
order  of  the  Orphans'  Court  to  sell  the  real  estate.  On  the 
succeeding  day,  the  defendant  was  sworn  to  the  truth  of  the 
statement  by  him  exhibited  with  the  petition,  and  an  order 
was  granted  to  sell  the  real  estate  on  a  certain  day. 

No  sale  having  taken  place  on  this  order,  a  second  order 
was  obtained  at  the  instance  of  the  defendant,  on  the  1st 
April  1788,  to  sell  on  the  27th  May  following.  The  pre- 
mises however  were  not  sold  under  this  second  order,  and 
it  was  again  renewed  on  the  5th  October  1790,  upon  the  ap- 
plication of  all  the  administrators,  and  a  public  sale  was  di- 
rected to  be  held  at  the  court-house  in  Sunbury,  on  the  12th 
November  following. 

Upon  the  third  January  1791,  a  return  of  sale  was  made 
by  the  administrators,  but  not  signed  by  them,  stating  that 
agreeably  to  the  order  of  the  court,  they  had  sold  the  said 
real  estate  to  Anthony  Selin  for  666/.  12*.,  he  being  the  best 
and  highest  bidder  j  and  the  Orphan's  Court  thereupon  con- 
firmed the  sale,  and  directed  that  it  should  remain  firm  and 
stable  forever. 

The  administrators  afterwards  by  their  deed  dated  12th 
June  1791,  wherein  the  different  proceedings  in  the  Or- 
phans' Court  were  recited,  conveyed  the  premises  to  Selin  ; 
and  the  deed  was  duly  acknowledged  by  the  defendant  on 
the  2d  December  1803,  by  Mary  Snyder  (who  had  married 
Jacob  Kendig}  on  the  same  day  ;  by  John  Miller  on  the  27th 
February  1804,  and  by  Jacob  Kendig  on  the  23d  August 
1805. 

The  title  being  thus  shewn  out  of  the  lessors  of  the  plain- 
tiff, by  the  sale  and  conveyance  to  Selin,  they  endeavoured 
to  defeat  this  title  by  several  objections,  which  may  be  rank- 
ed under  three  heads.  1.  To  the  proceedings  in  the  Orphans' 
Court,  as  being  on  the  face  of  them  irregular,  and  contrary 
to  law.  2.  To  the  proceedings  at  the  time  of  sale,  on  the  part 
of  Anthony  Selin.  3.  To  the  conduct  of  the  defendant  in  un- 
necessarily inducing  the  sale,  and  becoming  himself  a  secret 
purchaser  with  Selin. 

Under  the  first  head,  the  objections  were  1.  That  the 
original  petition  was  signed  by  one  only  of  the  administra- 


OF  PENNSYLVANIA. 


485 


tors.  2.  That  there  was  no  proper  inventory  filed,  or  admi- 
nistration account  settled,  to  authorize  the  order  of  sale : 
the  time  of  filing  the  former  not  appearing,  and  there  being 
but  a  mere  statement  in  place  of  account.  3.  That  the  de- 
fendant alone  was  sworn  to  the  truth  of  the  statement  ac- 
companying the  petition  for  a  sale.  4.  That  the  return  of 
sale  was  not  signed  by  the  administrators. 

Under  the  second  head,  they  produced  evidence  that  An- 
thony Selm  had  behaved  with  much  violence  at  the  sale, 
and  had  threatened  to  knock  down  any  person  who  should 
bid  against  him  ;  in  consequence  of  which,  a  competitor  of 
the  name  of  Bower  was  deterred,  as  he  said,  from  offering 
within  400/.  or  500/.  as  much  as  he  otherwise  would  have 
done  for  the  property.  They  at  the  same  time  gave  evidence 
that  Selin,  before  and  after  the  sale,  said  he  would  buy  and 
had  bought  for  John  Snyder^s  children. 

Under  the  third  head,  they  gave  evidence  that  A.  Selm 
and  the  defendant  were  partners  at  the  time  of  the  sale,  that 
the  defendant  came  into  possession  after  ScHrfs  death,  and 
had  spoken  of  the  property  as  his.  They  also  shewed  that 
John  Snyder  had  purchased  this  land  at  sheriff's  sale  for 
6271.  IQs.;  that  he  had  paid  only  100/.  to  the  sheriff,  and 
had  given  his  judgment  bond  for  the  remainder,  which 
remainder  the  defendant  had  not  paid  for  several  years 
after  the  sale  to  Selm. 

In  the  course  of  the  exhibition  of  this  and  the  preced- 
ing evidence,  the  plaintiff's  counsel  offered  Jacob  Kendig^ 
the  husband  of  Mary  Snyder,  as  a  witness,  he  having  first 
executed  to  Anthony  Snyder  a  release  of  all  interest  of 
dower  or  otherwise  in  the  land  in  dispute.  But  the  defen- 
dant's counsel  objected,  and  the  Court,  who  sustained  the 
objection,  sealed  a  bill  of  exceptions. 

To  rebut  so  much  of  the  plaintiff's  objections  as  were 
founded  on  evidence  dehors  the  record,  the  defendant  then 
offered  evidence,  1.  To  discredit  the  witnesses  of  the  oppo- 
site side,  who  had  sworn  as  to  Selin^s  conduct  and  declara- 
tions. 2.  To  explain  the  circumstances  in  relation  to  the  de- 
fendant's possession,  and  non-payment  of  John  SnydcSs 
debts. 

With  a  view  to  the  first  object  they  offered  among  others 
the  deposition  of  John  Miller,  which  stated  that  he  as 


1814. 


Lessee  of 

SNYDER 

et  al. 

v. 
SNYDER. 


486 


CASES  IN  THE  SUPREME  COURT 


1814. 


Lessee  of 

SNYDER 
etal. 

v. 
SNYDER. 


sheriff  of  Lancaster  county,  had  the  real  estate  of  Bswer 
~  under  execution,  and  a  ca.  sa.  for  his  body,  at  the  time  of 
his  asserted  intention  to  purchase  at  the  sale  ;  and  that  he  went 
with  him  to  the  sale.  That  Bower  never  told  him  after  the 
sale,  that  he  would  have  given  more  for  the  land,  if  he  had 
not  been  prevented  by  Selin.  Then  followed  the  question  to  the 
witness.  Question.  u  Did  said  Bower  assign  to  you  as  a  rea- 
u  son  why  he  would  not  bid  more  for  the  isle  of  Cue,  because 
"  he  could  buy  Witling's  land  adjoining  Kendig's  for  3/.  per 
"  acre,  and  that  on  yearly  instalments,  which  in  his  opinion 
"  was  equally  good  with  the  isle  of  Cue?"  Answer.  "  He 
"did  tell  me  so,  but  I  cant  tell  at  what  particular  time." 
Miller's  deposition  also  stated,  that  a  certain  half  an  acre, 
of  which  the  defendant  was  possessed,  was  excepted  out  of 
the  sale  by  the  administrators,  although  contained  in  their 
deed  to  Selin.  To  this  deposition  the  plaintiffs  objected,  but 
the  Court  received  it,  and  sealed  another  bill, 

On  the  second  branch  of  the  defence,  the  defendant's  coun- 
sel offered,  1.  An  arbitration  bond  between  John  Snyder  and 
his  brother  the  defendant,  cancelled,  and  an  award  in  the 
defendant's  favour,  by  which  he  became  entitled  to  part  of 
the  land  included  in  the  ejectment,  and  a  survey  of  the  piece 
in  question  referred  to  in  the  award,  in  conformity  to  which 
John  Snyder  in  his  life-time  executed  a  deed.  2.  Certain 
judgments  against  Peter  IVeiser  (the  owner  of  the  premises 
when  purchased  at  sheriff's  sale  by  John  Snyder}  prior  to 
that  under  which  the  sheriff  sold ;  in  consequence  of  which 
judgments,  and  the  insolvency  of  the  sheriff,  the  defendant 
was  obliged  to  use  great  caution  in  paying  the  balance  due 
by  John  Snyder.  To  these  documents  the  plaintiffs  also  ob- 
jected ;  but  they  were  admitted,  and  other  bills  of  exceptions 
sealed. 

In  conclusion  the  Court  left  the  case  to  the  jury  as  to 
all  matters  of  fact,  expressing  at  the  same  time  a  very  strong 
opinion  in  favour  of  the  defendant.  On  the  matters  of  law, 
they  charged  that  there  was  a  sufficient  evidence  that  all  ne- 
cessary forms  had  been  complied  with,  and  that  if  not,  the 
decrees  of  the  Orphans'  Court  ordering  and  confirming  the 
sale,  were  conclusive  until  reversed  upon  appeal ;  but  that  if 
Selin  prevented  binding  at  the  sale,  and  thereby  injured  it, 


OF  PENNSYLVANIA. 


487 


or  if  the  defendant  was  a  secret  purchaser  of  part,  the  sale 
was  void.     The  charge  was  also  exccpted  to,  and  the  jury~ 
found  for  the  defendant. 

In  this  Court  the  cause  was  argued  upon  the  same  ex- 
ceptions in  point  of  law,  which  had  been  urged  below,  with 
the  addition  of  the  exceptions  to  evidence  rejected  and  ad- 
mitted, and  those  to  the  charge  of  the  Court. 

Fisher  and  Watts  for  the  plaintiff  in  error. 
Duncan  contra. 

TILGHMAN  C.  J.  The  record  in  this  case  contains  five 
exceptions  to  the  opinion  of  the  Court  ol  Common  Pleas  of 
Northumberland  county.  The  four  first  are  upon  points  of 
evidence,  the  last  to  the  charge  of  the  Court. 

1.  The  first  exception  was  to  the  rejection  of  Jacob  Ken- 
dig,  a  witness  produced  by  the  plaintiff.  Before  he  was  offered, 
he  released  all  interest  which  he  might  have  in  right  of  his 
wife,  or  otherwise.  The  objection  to  Kendig  is,  that  if  the 
sale  is  set  aside,  his  wife  will  have  a  right  of  dower.  To 
this  it  is  answered,  that  the  wife  has  no  immediate  interest 
in  the  suit,  nor  could  she  give  the  verdict  in  evidence  in  an 
action  of  dower  to  be  brought  by  her  against  the  plaintiffs. 

In  support  of  this  are  cited  two  cases  from  Johnsons' s  Re- 
ports. Jackson  v.  Bard,  4  Johns.  230.  and  Jackson  v.  Van 
Dusen,  5  Johns.  147.  In  Jackson  v.  Bard,  the  widow  was 
clearly  disinterested,  because  she  had  joined  her  husband  in 
a  deed  which  barred  her  dower ;  so  that  it  was  indifferent  to 
her,  whether  the  heir  of  her  husband  recovered  or  not,  and 
that  was  one  of  the  reasons,  (and  it  appears  to  me  the  prin- 
cipal one)  which  governed  the  Court.  Jackson  v.  Van 
Dusen  seems  to  have  been  decided  on  the  authority  of 
Jackson  v.  Bard,  and  therefore  it  may  be  that  the  point  was 
not  thoroughly  considered.  There  is  privity  of  estate  be- 
tween Mrs.  Kendig  and  her  children,  who  are  heirs  of  her 
husband.  She  is  interested  therefore  in  the  verdict.  If  the 
plaintiffs  recover,  the  land  will  be  re-sold.  From  the  great 
rise  in  value,  it  is  certain  that  it  will  sell  for  much  more  now 
than  formerly,  consequently  the  estate  of  John  Snyder  will 
be  increased,  and  the  Orphans'  Court  will  allow  to  Mrs. 


1814. 


Lessee  of 

SNYDER 

et  al. 

v. 

SNYDER. 


488 


CASES  IN  THE  SUPREME  COURT 


1814. 


Lessee  of 

SNYDER 

et  al 

v. 
SNYDER. 


Kendig  in  lieu  of  dower,  an  annuity  equal  to  the  interest  of 
one  third  of  the  increase.  In  the  proceedings  which  take  place 
in  the  Orphans'  Court,  in  consequence  of  that  sale  being  set 
aside  by  this  verdict,  the  Court  will  not  only  receive  the  ver- 
dict as  evidence,  but  make  it  the  foundation  of  the  proceed- 
ings. When  the  land  reverts  to  the  estate  of  John  Snyder^ 
the  administrators  may  petition  for  a  new  order  of  sale,  to 
enable  them  to  do  justice  to  all  parties  concerned,  and  when 
the  new  sale  is  made,  Mrs.  Kendig  will  receive  her  propor- 
tion of  the  gain  in  the  manner  which  I  have  mentioned. 
Jacob  Kendig  therefore  stands  in  the  situation  of  a  person 
who  has  no  interest  himself,  but  whose  wife  has  an  interest 
to  take  effect  after  his  death.  During  his  own  life  he  has  re- 
leased every  thing  which  his  wife  would  be  entitled  to  re- 
ceive ',  but  he  cannot  release  that  which  may  accrue  after 
his  death.  There  remains  therefore  an  interest  in  the  wife, 
which  she  may  either  convey  or  release  by  an  immediate  deed, 
provided  her  husband  joins  her.  A  husband  thus  circum- 
stanced is  an  incompetent  witness,  not  because  of  interest, 
but  because  of  the  policy  of  the  law,  which  excludes  hus- 
band and  wife  from  testifying,  where  the  rights  of  either 
are  concerned.  Much  of  the  happiness  of  society  depends 
on  the  intimacy  of  husband  and  wife.  The  law  considers 
them  as  one,  and  will  not  suffer  their  union  to  be  broken  or 
even  put  to  hazard  by  testifying  against  each  other.  As  to 
testifying  for  each  other,  it  would  be  so  manifestly  improper, 
that  there  needs  no  argument  on  the  subject.  I  am  of  opinion 
therefore  that  the  Court  was  right  in  rejecting  the  evidence 
of  y.  Kendig. 

2.  The  next  exception  was  to  the  admission  of  certain 
papers  offered  in  evidence  by  the  defendants,  viz.  arbitra- 
tion bonds  between  John  Snyder  deceased,  and  Simon 
Snyder  the  defendant,  an  award  of  arbitrators,  and  a  draft 
of  a  piece  of  land  referred  to  in  the  award.  There  needs  but 
to  state  the  case  in  order  to  shew  that  this  evidence  was 
properly  received.  The  plaintiffs  asserted  that  the  defen- 
dant was  a  secret  partner  in  Anthony  Selin^s  purchase.  After 
the  death  of  Selin,  the  defendant  came  into  possession ; 
hence  might  arise  a  presumption  unfavourable  to  the  defen- 
dant. It  was  incumbent  on  him  therefore  to  account  for  this 
possession,  which  he  did  in  part  by  the  papers  alluded  to  in 


OF  PENNSYLVANIA. 


489 


this  exception.    The  arbitrators  made   an    award  by  which 
the  defendant  became  entitled  to  part  of  the  land  included" 
in  this  ejectment.    The  Court  was  right  therefore  in  receiv- 
ing the  evidence. 

3.  The  next  exception  was  to  the  admission  of  the  records 
of  sundry  judgments  against  a  certain  Peter  Weiser.    This 
also  will  appear  to  be  clearly  right,  when  the  circumstances 
are  explained.  The  plaintiffs  objected  to  the  conduct  of  the 
defendant  in  not  making  payment  of  the  debts  of  John  Sny- 
der  for  a  considerable  time  after  his  land  was  sold.     Tne 
objection  was  answered  as  follows.    John  Snyder  had  pur- 
chased the  land  in  dispute  of  Peter  Weiser.  There  were  seve- 
ral judgments  which  bound  Weiser's  land  prior  to  Snyder's 
purchase.     Snyder  was  indebted  to  the  estate  of  Weiser  in  a 
considerable  sum,  part  of  the  purchase  money,  for  which 
judgment   was  obtained   against  his  administrators.     The 
sheriff  of  Northumberland  county  was  insolvent,    and  great 
caution   was   necessary,  lest  the  payment   made  by    John 
Snyder^s  administrators  should  not  be  applied  to  the  riis- 
charge  of  the  judgments  which  bound  the  land.     This  was 
the  excuse  offered  on  the  part  of  the  defendant,  and  it  was 
right  that  he  should  be  allowed  the  opportunity  of  proving 
his  allegations. 

4.  The  fourth  exception  goes  to  the  deposition  of  John 
Miller.    At  first  it  was  said  that  the  notice  of  the  taking  of 
this  deposition  was   not  legal,  but   as   that  objection   was 
waived  on  the  argument,  I  shall  say  nothing  of  it.  Several  par- 
ticulars in  the  deposition  itself  were  then  excepted  to.   1st. 
The  witness  swore,  that  in  the  sale  by  the  administrators  of 
John  Snyder  to  A.  Selin,  there  was  an  exception  of  half  an 
acre  the  property  of  Simon  Snyder.   It  is  said  that  the  half 
acre  is  included  in  the  deed  from  the  administrators  (of 
whom  Miller  was  one)  to  Selin.  If  so,   the  evidence  was 
improper,   because   it    was   in   contradiction   of  the   deed. 
2d.  The  witness  had   formerly  been  sheriff  of  Lancaster 
county,  and  swore  that  he  had  the  real  estate  of  a  certain 
Michael  Bower  under  execution  while  sheriff,  and  also  his 
body,  by  virtue  of  writs  of  execution  issued  from  the  courts 
of  Lancaster  county.    This  evidence  was  also  improper;  it 
should  have  been  proved  by  the  records  that  such  execu- 
tions had  been  issued.  3d.  One  of  the  questions  proposed 

VOL.  VI.  3  Q 


1814. 

Lessee  of 

SNYDER 

etal. 

v. 
SNYDER. 


490 


CASES  IN  THE  SUPREME  COURT 


1814. 


Lessee  of 

SNYDER 

etal. 

v. 

SNYDER. 


to  the  witness  was  objected  to  as  a  leading  question.  I 
think  the  objection  was  good.  The  question  was  so  framed 
as  to  indicate  particularly  the  answer  which  the  plaintiffs 
wished.  Instead  of  asking  the  witness  whether  he  had  heard 
John  Bower  say  any  thing,  and  what,  on  a  certain  subject, 
the  words  were  put  into  his  mouth ;  viz.  "  did  he  assign  to 
"  you  as  a  reason  why  he  would  not  bid  more  for  the  isle 
"  of  Cue,  that  he  could  buy  Witling's  land  for  3/.  an  acre, 
"and  that  on  yearly  instalments  &c.  ?"  I  am  of  opinion 
therefore  that  the  plaintiffs  in  error  have  supported  their 
exception  to  Miller's  deposition. 

5.  The  last  exception  is  to  the  charge  of  the  Court.  In  all 
respects  but  one  I  think  the  charge  was  correct.    The  con- 
duct of  A.  Selin  at  the  sale  was  submitted  to  the  jury,  and 
they  were  told  that  if  in  their  opinion  it  was  such  as  to 
deter  others  from  purchasing,  the  sale  was  void,  and  the 
verdict  should  be  for  the  plaintiffs.  They  were  likewise  told 
that  if  the  defendant  was  secretly  concerned  in  the  purchase, 
the  sale  was  void,  because  the  defendant  being  authorized 
together  with  the  other  administrators,  to  sell  the  land  by 
order  of  the  Orphan's  Court,  could  not  lawfully  be  the  pur- 
chaser ;  and  although  he  was  concerned  but  in  part^  it  was 
sufficient  to  vitiate  the  whole.    So  far  the  charge  was  as 
favourable  to  the  plaintiffs  as  they  had  any  right  to  ask. 
But  the  plaintiffs  insisted  further,  that  the  Orphans'  Court 
;had  no  power  to  order  a  sale,  because  no  inventory  had  been 
returned,  nor  was  it  proved  to  the  Court  that  there  was  not 
personal  estate  of  John  Snyder  sufficient  to  pay  his  debts. 
It  was  matter  of  controversy  on  the   evidence,  whether  an 
inventory  had  been  returned  or  not,  and  whether  there  was 
not  sufficent  proof  that  the  personal  estate  fell  short  of  the 
debts.     On  both  these  facts  the  Court  expressed  their  opi- 
nion in  favour  of  the  defendant,  leaving  them  however  to 
the  decision  of  the  jury.    This  was  doing  no  more  than  the 
Court  had  a  right  to  do ;  but  they  went  on  to  say  that  at  all 
events,  the  sale  having  been  made  by  order  of  the  Orphans1 
Court,  and  afterwards  confirmed,  could  not  be  questioned 
in  an  ejectment,  but  stood  good  until  reversed  on  an  appeal. 
The  law  is  clearly  not  so.  The  Orphans'  Court  is  not  a  court 
of  general  jurisdiction,  and  with  respect  to  the  sale  of  lands 
they  have  no  other  power  than  is  conferred  by  act  of  assem- 


OF  PENNSYLVANIA. 


491 


bly.  It  might  be  more  convenient,  and  render  the  law  more 
uniform,  if  those  proceedings  were  reversible  only  on  an" 
appeal ;  but  after  the  long  practice  which  has  prevailed  of 
inquiring  into  those  proceedings  in  actions  of  ejectment,  it 
is  too  late  to  attempt  an  alteration.  It  is  unnecessary  to 
dilate  on  this  subject,  as  we  delivered  our  opinions  expli- 
citly in  the  case  of  Messinger  v.  Kintner  4>  Binney  97.  I 
think  it  however  proper  to  remark,  that  although  the  pro- 
ceedings of  the  Orphans*  Court  may  be  reversed  in  an 
ejectment,  yet  as  much  property  depends  on  those  proceed- 
ings, great  allowance  should  be  made  for  the  informal  man.- 
ner  in  which  they  have  been  conducted,  especially  where 
the  titles  acquired  under  them,  have  been  accompanied  with 
long  possession.  On  the  whole  my  opinion  is,  that  the  judg- 
ment in  this  case  should  be  reversed,  and  a  venire  facias  de 
novo  awarded. 

YEATES  J.  The  importance  of  some  of  the  principles 
agitated  in  this  cause,  has  induced  the  Court  to  continue  the 
matter  under  advisement.  To  me  it  appears,  that  the  fate  of 
many  titles  is  involved  in  our  decision. 

Several  questions  of  evidence  have  been  raised  on  bills 
of  exceptions  sealed  at  the  trial.  The  first  respects  the  over- 
ruling the  testimony  of  Jacob  Kendig^  who  intermarried 
with  Mary  the  widow  of  John  Snyder,  under  whom  both 
parties  claim.  It  has  been  contended  that  he  was  no  legal 
witness,  upon  the  grounds  of  interest,  and  of  public  policy. 
Upon  the  score  of  interest,  it  has  been  urged,  that  although 
he  has  released  all  his  claim  in  right  of  his  wife  to  her 
dower  in  these  lands,  his  wife  has  not  joined  in  the  release; 
consequently  a  future  interest  will  accrue  to  her  on  the 
event  of  her  surviving  him,  and  sh^  is  to  be  viewed  as  a  re- 
mainder man  :  that  she  must  necessarily  be  benefited  upon 
such  event  arising,  if  the  sale  made  in  pursuance  of  the 
order  of  Orphans'  Court  can  be  invalidated  :  that  it  was 
admitted  on  the  trial,  that  her  former  husband  died  seized 
ot  the  premises,  and  she  claiming  under  him  an  excrescence 
from  his  estate,  has  a  privity  of  estate  with  the  plaintiffs 
his  children,  and  may  give  the  verdict  in  evidence  in  a  suit 
brought  for  her  dower. 

I  answer  that  the  husband  certainly  cannot  give  testimony 


1814. 


Lessee  of 

SNYDER 

et  al. 

v. 
SNYDER, 


492 


CASES  IN  THE  SUPREME  COURT 


1814. 


Lessee  of 

SNYDER 

et  al. 

v. 
SNYDER. 


in  favour  of  his  wife,  in  a  question  where  her  separate  inte- 
rest is  concerned ;  yet  that  interest  of  the  wife  must  be  cer- 
tain and  positive,  not  merely  possible  and  contingent.  What 
the  law  looks  upon  as  interest,  is,  where  there  is  a  certain 
benefit  or  disadvantage  attending  the  consequence  of  the 
cause  one  way.  Gilb.  Law  Evid.  12O.  Lord  Hardwicke  has 
stated  explicitly  in  Rex  v.  Bray,  Hardzu.  Cas.  359,  that  if 
a  witness  can  answer  fully  on  a  voir  dire  that  he  is  not  to 
gain  or  lose  by  the  event  of  the  particular  suit,  he  must  be 
a  witness.  A  juror  must  stand  absolutely  indifferent  as  he 
stands  unsworn ;  but  a  witness  need  not  be  so.  A  creditor 
may  be  a  witness  in  a  suit  brought  against  a  stranger  by  his 
debtor,  although  the  money  so  received  may  enable  such 
debtor  to  satisfy  the  creditor.  He  may  be  examined  as  a 
witness  to  prove  fraud  in  his  debtor,  who  has  applied  for 
the  benefit  of  the  insolvent  act.  2  Dall.  268. 

The  contingency  of  the  wife  surviving  her  husband  is 
highly  uncertain ;  and  although  I  admit  that  she  may  be  con- 
sidered, on  that  event  happening,  interested  in  the  question 
in  this  suit,  yet  that  is  not  such  an  interest  as  will  exclude 
the  husband  from  giving  testimony,  according  to  the  uniform 
current  of  the  modern  authorities,  which  we  have  fully 
adopted.  In  Baker  v.  Arnold,  1  Caines  276,  Mr.  Justice 
Kent  observes,  that  it  has  been  the  bent  of  the  Court  for  a 
century  past  to  enlarge  the  rule  respecting  the  competency 
of  witnesses.  It  must  be  a  present  and  vested,  and  not  a 
future  and  contingent  interest,  that  excludes  a  witness.  He 
must  be  interested  directly  in  the  event  of  the  cause,  and  not 
merely  in  the  question  put.  The  rule  is  that  if  the  witness 
will  not  gain  or  loose  by  the  event  of  the  cause,  or  if  the 
verdict  cannot  be  given  in  evidence  for  or  against  him  in 
another  suit,  the  objection  goes  to  his  credit  only,  and  not 
to  his  competency.  Such  have  been  the  principles  of  deci- 
sion in  this  Court  in  a  great  variety  of  cases.  I  do  not  see 
how  the  vtrdict  in  this  case  could  be  given  in  evidence  by 
Mrs.  Kendig,  in  any  future  suit  she  might  bring  for  her 
dower,  in  case  she  survived  her  husband.  The  cases  of  Jack- 
son v.  Bard,  4  Johns.  230.,  and  Jackson  v.  Van  Dusen 
5  Johns.  158,  are  express  authorities  in  point.  There  are 
many  cases  where,  though  the  tendency  of  a  man's  evidence 
be  to  promote  his  own  advantage,  or  to  give  him  a  certain 


OF  PENNSYLVANIA. 


493 


reward,  yet  he  is  a  competent  witness.     When  the  interest 
is  very  remote  it  shall  not  disqualify  the  witness.    1  Stra.  ~ 
575.  Espin.  705. 

It  has  been  moreover  insisted,  that  if  Kendig  was  not  ex- 
cluded from  giving  testimony  on  the  ground  of  interest,  he 
would  be  repelled  on  a  system  of  public  policy,  which  for- 
bids husband  and  wife  from  being  witnesses  for  or  against 
each  other.  Admit  this  to  be  the  basis  of  the  doctrine  of 
evidence  as  applicable  to  persons  in  a  married  character, 
what  discord  or  enmity  could  flow  from  the  husband  testi- 
fying favourably  to  the  pretensions  of  the  plaintiff?  That  he 
is  not  himself  interested  in  the  event  of  this  cause,  I  have 
already  shewn,  and  that  his  wife  may  by  possibility  hereafter 
become  interested  in  the  question,  I  have  admitted.  That  the 
feelings  or  wishes  of  the  witness  might  be  strongly  embarked 
on  the  side  of  the  plaintiffs,  I  have  little  room  to  doubt.  But 
such  is  uniformly  the  case,  as  between  parent  and  child,  and 
our  nearest  connexions  in  life,  whether  formed  by  nature, 
by  choice,  or  by  habit.  The  law  knows  no  scale  whereby  in- 
fluence may  be  measured,  but  refers  the  credibility  of  wit- 
nesses with  all  their  prejudices  and  prepossessions,  to  impar- 
tial persons,  under  the  proper  remarks  of  the  Court,  adapted 
to  the  circumstances  of  each  particular  case. 

I  find  in  the  Supreme  Court  of  Appeals  in  Virginia,  in 
1806,  the  case  of  Baring-  v.  Reeder,  reported  in  1  Hen.  & 
Munf.  154,  which  appears  to  me  very  similar  to  that  under 
consideration.  It  underwent  the  fullest  argument  both  at  the 
bar,  and  on  the  bench,  and  all  the  authorities  on  the  sub- 
ject in  the  books  seem  to  have  been  fully  ransacked.  The 
majority  of  the  Court  then  established  the  broad  principle, 
that  in  suits  in  which  the  husband  is  not  immediately  and 
certainly  interested,  but  may  be  so  eventually,  the  wife  is  a 
competent  witness.  Her  credibility  can  be  weighed  by  the 
jury  alone. 

I  have  been  more  minute  on  this  point  of  evidence,  as  I 
presume  from  what  passed  during  the  argument,  I  shall  be 
found  here  in  the  minority.  But  I  am  imperiously  bound  to 
declare  my  own  opinion,  and  the  reasons  which  influenced  it. 

I  regard  the  arbitration  bond,  award,  and  survey  by  Wil- 
liam  Gray,  which  has  also  been  excepted  to,  as  legal  and 


1814. 


Lessee  of 

SNYDER 

et  al. 

v. 
SNYDER. 


494 


CASES  IN  THE  SUPREME  COURT 


1814. 


Lessee  of 

SNYDER 

etal. 

v. 
SNYDER. 


relevant  evidence  in  this  cause,  and  that  they  properly  went 
to  the  jury. 

The  plaintiffs  attempted  to  establish  that  the  defendant 
came  into  possession  of  the  premises,  under  the  sale  by  the 
administrators  of  John  Snyder,  founded  on  the  order  of  the 
Orphans'  Court  j  and  that  he  was  concerned  with  Anthony 
Selin  in  the  purchase.  Hence  fraud  was  inferred  which 
would  vitiate  the  sale.  It  was  therefore  incumbent  on  the 
defendant  to  prove  that  his  possession  was  derived  from  a 
different  source,  and  that  he  came  in  under  a  deed  from  the 
intestate  to  himself  and  A.  Selin,  for  82  acres  50  perches, 
(part  of  the  original  tract)  dated  23d  February  1787,  exe- 
cuted in  pursuance  of  an  award  by  men  mutually  chosen  to 
settle  the  controversies  between  them  respecting  this  'TO- 
perty.  The  arbitration  bond  and  award  were  functi  officiist 
when  the  deed  was  given  in  pursuance  of  the  award,  which 
though  cancelled,  ought  to  be  proved  by  a  subscribing  wit- 
ness as  well  as  other  deeds.  Peake's  Evid.  64.  These  docu- 
ments formed  the  original  ground  of  the  deed,  and  shewed 
powerfully,  that  the  transaction  in  this  particular  was  per- 
fectly fair.  The  award  referred  to  the  survey  of  a  particular 
date  made  by  William  Gray  the  umpire,  and  the  whole 
proceeding  in  its  various  stages  was  correctly  brought  before 
the  jury,  for  their  decision  on  the  toute  ensemble. 

In  the  same  light  I  view  the  judgments  against  Peter 
Weiser,  a  list  whereof  was  exhibited  to  the  jury,  but  like- 
wise excepted  to.  John  Snyder  had  purchased  his  lands  at 
sheriffs'  sale  for  63 7/.  10*.  He  had  paid  no  more  than  100/. 
of  the  purchase  money,  and  had  given  his  judgment  bond 
to  the  sheriff  for  the  residue.  On  the  part  of  the  plaintiffs 
it  was  contended,  that  there  was  no  necessity  for  a  sale  of 
these  lands,  and  that  the  sale  was  hurried  with  undue  pre- 
cipitation. To  repel  the  force  of  these  remarks,  it  became 
material  to  shew  the  pressure  on  the  estate  of  John  Sny- 
der from  different  quarters,  and  that  the  judgment  creditors 
of  Weiser,  whose  lands  had.  been  sold  to  the  intestate,  and 
the  consideration  money  had  been  unpaid,  would  be  pecu- 
liarly urgent  for  their  demands.  To  form  a  correct  judgment 
of  the  merits  of  the  plaintiffs'  claim,  we  must  transport 
ourselves  back  to  the  period  of  the  death  of  their  father, 
and  consider  the  true  state  of  his  debts  and  credits,  and  the 


OF  PENNSYLVANIA. 


495 


situation  of  his  family  at  the  time.  No  arguments  injurious 
to  a  purchaser  can  be  deduced  from  the  rapid  rise  of  lands 
since  that  era,  if  the  sale  was  in  itself  necessary,  and  the 
proceedings  were  regular  and  fair. 

I  consider  the  supplemental  depositions  of  John  Miller, 
as  containing  matters  not  properly  the  subject  of  parol  evi- 
dence. The  intention  of  the  administrators  of  John  Snyder 
in  their  deed  to  A.  Selin,  must  be  collected  from  their  writ- 
ten expressions,  and  not  from  circumstances  dehors  the 
writing.  The  executions  issued  against  Michael  Boiver  one 
of  the  plaintiffs!  witnesses,  should  be  proved  by  certified 
copies  ;  although  his  identity  might  be  established  by  parol 
evidence.  As  to  one  of  the  interrogatories  being  leading,  I 
content  myself  with  observing  that  it  ought  to  have  been 
excepted  to  at  the  time.  Such  was  our  determination  in 
Sheeler  v.  Spear,  3  Binn.  1 30. 

I  proceed  to  the  charge  of  the  president  of  the  Court  of 
Common  Pleas,  which  is  said  to  be  erroneous  in  several 
particulars.  In  so  doing,  I  hold  myself  bound  by  the  facts 
of  the  case,  as  necessarily  found  by  the  verdict  of  the  jury. 
The  reasoning  of  the  Court,  and  the  legal  conclusions  drawn 
by  them,  must  be  judged  of  from  the  facts  stated  in  the 
charge.  Should  we  suppose  those  facts  to  have  been  incor- 
rectly stated,  we  cannot  as  a  court  of  error  revise  them. 
We  must  bear  in  mind  that  if  the  court  below  have  given  a 
right  judgment,  though  for  a  wrong  reason,  it  ought  never- 
theless to  be  affirmed.  1  Munf.  557. 

The  proceedings  in  the  Orphans'  Court  having  been 
warmly  impeached,  it  becomes  necessary  to  state  them 
minutely.  [His  honour  here  stated  the  facts.]  To  these  dif- 
ferent proceedings  several  objections  have  been  taken  ;  and 
the  plaintiffs'  counsel  have  insisted  that  the  course  of 
descent  was  not  broken,  unless  all  the  provisions  of  the 
seventh  section  of  the  old  act  of  1705,  "  for  the  better  set- 
tling of  intestates'  estates,"  (1  DalL  Laws  Append.  45, )  have 
been  strictly  complied  with  ;  and  the  words  "  then  and  in 
every  such  case,  and  not  otherwise"  have  been  much  relied  on. 

1.  It  has  been  objected  that  the  original  petition  was  not 
signed  by  all  the  administrators  ;  and  the  law  requires  the 
act  to  be  done  by  all.  To  this  it  is  a  sufficient  answer  to  say, 
that  they  all  joined  on  the  5th  October  1790,  in  an  applica- 


1814. 


Lessee  of 

SNYDER 

et  al 

v. 
SNYDER. 


496 


1814. 


Lessee  of 

SNYDER 

etal. 

v. 
SNYDEB. 


tion  to  renew  the  order  of  sale,  and  acted  under  it.  The  law 
does  not  require  a  petition,  although  such  has  been  the 
practice  :  but  only  an  exhibition  of  certain  accounts,  shewing 
the  necessity  of  a  sale.  Here  the  maxim  applies  :  "  omnis 
"  ratihabitio  retrotrahitur  et  mandato  equiparatur"  Co. 
Lit.  207. 

As  to  the  words  and  not  otherwise,  in  this  7th  section,  I 
will  observe  in  my  outset,  that  instead  of  the  literal  and 
strict  construction  of  the  words  as  now  contended  for,  they 
were  very  liberally  expounded  by  M^Kean  Chief  Justice,  at 
a  full  court,  in  the  case  of  Humphrey  Fullerten  at  Chambers- 
burg,  after  solemn  argument  in  which  I  was  counsel,  by 
deciding  that  the  Orphans'  Court  had  power  to  direct  a  sale 
for  payment  of  debts,  although  there  were  no  minor  chil- 
dren to  be  maintained  ',  and  within  my  own  knowledge,  se- 
veral sales  have  been  ordered  in  like  cases,  in  pursuance  of 
that  decision. 

2.  The  want  of  an  inventory  and  administration  account 
to  warrant  the  sale,  have  been  strongly  pressed  in  the  argu- 
ment, as  radical  defects. 

In  fact,  the  original  inventory  was  given  in  evidence, 
though  the  judge  erred  in  stating  that  it  was  not  filed  till 
after  the  sale.  There  can  be  no  reason  to  doubt  that  it  was 
filed  on  the  same  day  the  letters  of  administration  issued. 
We  well  know  that  in  the  country,  the  giving  of  bond, 
taking  out  letters  of  administration,  and  filing  the  inventory, 
are  frequently  simultaneous  acts,  done  at  the  same  time  to 
save  the  trouble  and  expense  of  another  journey  to  the  coun- 
ty town.  Why  did  the  register  himself  make  the  memoran- 
dum on  the  inventory,  that  it  was  taken  and  appraised  19th 
May  1787,  bySwineJbrd  and  Weyrick  duly  qualified  for  that 
purpose  ?  It  is  true,  he  ought  to  have  endorsed  on  the  paper 
when  it  was  filed.  But  shall  purchasers  at  fair  public  sales 
be  affected  by  the  unskilfulness  or  negligence  of  the  proper 
officer  ?  But  suppose  that  no  inventory  had  been  filed  pre- 
viously to  the  order  of  sale,  would  not  an  honest  statement 
of  the  amount  ot  sales  of  all  the  goods,  and  an  estimate  of 
choses  in  action^  be  a  substantial  compliance  with  this  part 
of  the  act  ?  The  object  of  the  legislature  was,  that  the  lands 
of  an  intestate,  or  such  part  thereof  as  should  be  necessary, 
should  be  sold  to  enable  the  administrator  to  pay  debts  and 


OF  PENNSYLVANIA. 


497 


maintain  the  minor  children,  in  case  there  should  not  be  per- 
sonal estate  sufficient  to  effect  these  purposes.  By  adding 
the  advance  of  sales  to  the  conscionable  appraisement,  the 
true  state  of  the  intestate's  affairs  is  disclosed  to  the  Court. 
The  words  of  the  law  of  17O5  are,  "that  the  Orphans* 
*'  Court  shall  not  allow  or  order  any  intestate's  lands  or 
11  tenements  to  be  sold,  before  the  administrator  requesting 
"  the  same,  doth  exhibit  one  or  more  true  and  perfect  inven- 
"  tories,  and  conscionable  appraisement  of  all  the  intestate's 
11  personal  estate  whatsoever,  and  also  a  just  and  true  ac- 
"  count  upon  his  or  her  solemn  affirmation,  of  all  the  intes- 
"  tate's  debts,  which  shall  be  then  come  to  his  or  her 
"  knowledge,"  &c.  The  act  by  no  means  requires  the  re- 
gular settlement  of  an  administration  account,  which  cannot 
be  done  without  sufficient  assets,  but  only  a  true  account  of 
the  debts  known  to  the  administrators.  If  it  appears  on  the 
facts  disclosed  to  the  Orphans'  Court,  that  the  debts  cannot 
be  discharged,  and  the  children  brought  up  without  selling 
the  lands,  and  they  are  fully  satisfied  on  those  points,  their 
powers  are  called  into  full  exercise. 

I  am  uninformed  of  the  particular  circumstances  of  the 
case  of  the  lessee  of  Larrimer  and  "wife  v.  Irwin,  cited  in 
4  Binn.  104  ;  but  if  the  order  of  the  Orphans'  Court  was 
therein  declared  to  be  void,  because  at  the  time  of  the  de- 
cree no  administration  account  was  settled,  I  never  can  be 
brought  to  assent  to  that  decision.  Neither  the  policy  nor 
the  words  of  the  law  demand  this  construction  ;  and  I  have 
no  hesitation  in  asserting,  that  in  the  counties  wherein  I 
have  practised,  at  least  nineteen  cases  out  of  twenty  of  sales 
under  the  orders  of  Orphans'  Courts,  would  be  avoided, 
should  that  doctrine  be  established. 

3.  It  was  further  objected  that  Simon  Snyder  alone  was 
sworn  to  the  truth  of  the  accounts  by  him  exhibited  in  the 
petition  for  a  sale.  It  is  not  unusual  for  the  acting  adminis- 
trator to  conduct  the  proceedings.  The  defendant  was  on  the 
spot,  and  Miller  lived  about  eighty  miles  distant  from  the 
scene  of  action.  The  widow  could  not  be  supposed  to  be  well 
informed  in  business  of  this  nature.  Simon  Snyder  appears 
through  all  the  proceedings  to  have  been  the  acting  admi- 
nistrator, and  on  the  28tli  October  1805,  settled  by  himself 
the  administration  account  of  all  the  transactions  in  North- 
VOL.  VI.  3  R 


1814. 


Lessee  of 

SNYDER 

et  al. 

v. 
SNYDER. 


498 


CASES  IN  THE  SUPREME  COURT 


1814. 


Lessee  of 

SNYDER 

etal. 

T>. 

SNYDEH. 


umberland  county.  From  all  the  administrators  joining  iu 
the  application  for  the  renewal  of  the  order  of  sale — actu- 
ally selling  under  it — executing  a  deed  to  the  purchaser—- 
and confirming  it  by  their  solemn  acknowledgments  at  three 
different  times,  I  feel  myself  bound  to  presume  that  they 
all  saw  the  necessity  of  selling  the  lands,  and  previously 
agreed  to  apply  for  the  order  of  sale.  From  the  circum- 
stance of  the  names  signed  to  the  original  petition  being  in 
the  handwriting  of  Simon  Snyder,  (which  it  was  incumbent 
on  no  purchaser  to  examine)  it  is  most  highly  probable, 
that  he  alone  was  present  when  the  Orphans'  Court  made 
the  order;  and  if  that  Court  was  satisfied  of  the  correctness 
of  the  statement  verified  by  his  oath,  I  think  the  order  to 
sell  may  well  be  supported. 

4.  The  return  of  sale  not  being  signed  by  the  administrators, 
forms  the  last  exception.  The  law  only  requires,  "  that  the 
"  administrator  who  makes  such  sale,  shall  bring  his  or  her 
'*  proceedings  therein  to  the  next  Orphans'  Court  after  the 
"  sale  made."  The  Orphans'  Courts  are  the  proper  judges  of 
their  own  modes  of  practice.  The  return  is  only  evidence  of 
what  has  been  done  under  the  decree,  and  that  the  adminis- 
trator had  proceeded  agreeably  thereto.  The  sale  is  submit- 
ted to  the  Court  for  their  approbation.  Here  the  Court  have 
acted  judicially  on  the  unsigned  return,  and  have  ordered 
the  sale  to  remain  firm  and  stable  forever.  The  recitals  in 
the  deed  to  the  purchaser  abundantly  supply  any  seeming 
defect  in  this  part  of  the  proceeding. 

I  cannot  avoid  remarking,  that  the  exceptions  which  I 
have  considered,  furnish  striking  proof  of  the  propriety 
of  applying  to  professional  men  to  transact  matters  of  this 
nature.  It  is  the  most  ill  judged  economy  to  intrust  business 
in  courts  of  justice  upon  which  the  titles  to  lands  depend, 
to  men  unskilled  in  such  subjects. 

I  am  under  no  difficulty  wnen  I  assert  the  charge  of.  the 
Court  to  be  erroneous,  in  declaring  in  broad  and  general 
terms  that  the  final  determination  of  the  Orphans'  Court  on 
the  sale  was  conclusive,  until  set  aside  upon  an  appeal  or  other 
removal  to  a  superior  court.  Indeed  as  to  this  point,  the 
subsequent  part  of  the  charge  is  manifestly  contradictory ; 
because  it  is  particularly  submitted  to  the  jury  to  decide, 
whether  the  sale  was  materially  injured  by  any  improper 
conduct  of  Anthony  S'elin,  and  whether  Simon  Snyder  was 


OF  PENNSYLVANIA. 


499 


interested  with  him  in  the  purchase  of  the  lands,  in  either 
of  which  cases  the  jurors  were  instructed  that  the  sale  ought 
to  be  declared  void.  What  effect  the  general  proposition 
abovementioned  would  have  on  the  minds  of  the  jurors,  I 
will  not  venture  to  determine  ;  but  that  it  might  distract  the 
attention  from  the  true  merits  of  the  case  is  within  the  range 
of  possibility. 

I  have  already  expressed  my  sentiments  upon  the  ex- 
ceptions taken  to  the  proceedings  in  the  Orphans'  Court, 
and  have  spoken  with  freedom  of  the  case  of  Lar rimer's  Les- 
see v.  Irwin.  Upon  the  fullest  reflection,  1  do  not  feel  dis- 
posed to  retract  any  part  of  the  opinion  which  I  delivered 
in  Messenger  et  al.  v.  Kintner,  4  Binn.  105.  107.  I  consider 
the  general  remark  to  be  correct,  that  the  decree  of  the 
Orphans'  Court  in  a  case  within  their  jurisdiction  is  reversi- 
ble by  appeal  only,  and  not  collaterally  in  another  suit.  The 
settled  rule  is,  that  the  merits  of  a  judgment  can  never  be 
contested  by  any  original  suit  either  at  law  or  in  equity. 
2  Burr.  10O9.,  1  H.  Black.  Rep.  294.  The  maxim  is,dejide 
et  cfficio  judicis  non  recipitur  questio*  Hardr.  127.  But  in 
Messenger  v.  Kintner,  the  defendant  in  error,  a  minor  some- 
what about  nine  years  of  age,  was  attempted  to  be  bound  by 
proceedings  unsanctioned  by  law  or  justice,  to  which  neither 
he,  his  guardian,  nor  next  friend  were  parties.  It  was  res 
inter  alios  acta,  and  no  presumption  could  be  formed  in 
favour  of  what  was  done.  I  assimilate  the  present  case  to  a 
sheriff's  selling  land,  which  he  has  taken  in  execution  by 
process  of  law.  The  judgment  concludes  all  irregularities  in 
the  previous  proceedings,  except  where  the  plaintiff  in  the 
execution  becomes  the  purchaser.  Goodyer  v.  Junce,  Teh. 
179.  But  the  sale  must  be  fair  and  just  in  itself,  uninfluenced 
by  threats  or  violence.  The  officer  cannot  sell  to  himself. 
Fraud  will  vitiate  any  act  whatever.  Here  the  lands  have  not 
been  aliened  by  the  first  purchaser,  but  remain  in  his  chil- 
dren, whose  guardians  have  leased  to  the  defendant.  The 
true  merits  of  the  case  rest  on  the  honesty  and  fairness  of 
the  public  sale,  and  may  be  fully  contested  in  the  present 
suit. 

Upon  the  whole  matter  I  am  of  opinion  that  the  judgment 
below  be  reversed,  and  a  new  trial  be  awarded. 

BRACKENRIDGE  J.  accorded  in  opinion  with  the  Chief 
Justice. 

Judgment  reversed. 


1814. 


Lessee  of 

SNYDER 

et  al. 

v. 
SNYDER. 


500  CASES  IN  THE  SUPREME  COURT 

* 


Lessee  of  SWEITZER  against  MEESE  and  others^ 

,  —OK. 

Notice  to  take  *  i^HIS  was  a  writ  of  error  to  the  Common  Pleas  of  Centre 

depositions  at  the  .  .  .  ... 

houi,e  of  --  "*•  county,  to  remove  the  record  and  proceedings  in  an 
kee'^tn'rorifc  acti°n  °f  ejectment.  With  the  record  came  up  two  bills  of 
on  the  27th  of  the  exceptions  by  which  it  appeared  as  follows  : 

present  month  of        TT  ,  .    i      r    i  i         i    ••/»•«•       j  j 

December,  be-  Upon  the  trial  ot  the  cause,  the  plaintiff  offered  to  read 
rften  AeM?md  the  deP°s»tions  of  Rudolph  Spangler  and  Margaret  Dawdle, 
seven  P.  M  ,  taken  at  the  house  of  Samuel  Spangler  in  York  at  five  P.  M. 

though  the  notice  .  .        r   ^  ,  ,_^    .  - 

has  iv  date,  does  on  the  27th  or  December  18O9,  in  pursuance  or  a  notice,  en- 
^SK/SSSaiZ^^  in  the  cause»  and  directed  to  George  Meeseone  of  the 
ami  w»s  served  defendants,  calling  upon  him  to  take  notice  that  the  deposi- 

only  on  one  of 

three  defendants  tions  would  be  taken  "  at  the  house  of  -  Spongier,  inn- 
go.Tw'aTto'au-  **  keeper  in  Yorktown,  Pennsylvania,  on  the  27th  day  of 
thorfze  reading  a  «  December,  the  present  month,  between  the  hours  of  ten 

deposition  taken  •* 

at  fi*e  P.M.  on    "  o'clock  in  the  morning,  and  seven  in  the  evening  of  that 
"  same  day."    The  notice  had  no  date,  but  was  served  on 


Spanffier:thetio-Meese  upon  tne  land,  on  the  2d  of  December  1809. 

tioe  having  been  '  . 

on  the  2d       Spongier  the  witness,  and  his  wire,  had  conveyed  the  pre- 
mises  to  the  lessor  of  the  plaintiff  on  the  25th  of  March  1  797, 
proof  iha>  either  with  covenant  of  warranty  against  himself  and  his  heirs  and 

ot  the  defendants  .  .  _      °  .    . 

attended  at  the     also  against  the  heirs  ot  Michael  Hahn,  whose  admimstra- 
na(^  conveyed  to  Spangler,  in  pursuance  of  a  contract 


on  any  hour  of      bv  Hahn* 
A  grantor  with      Margaret  Dawdle  was  the  wife  of  Michael  Dowdle,  who 


od  '"witness  ^^  ^een  eclua^y  interested  with  Hahn  in  the  premises,  and 
to  support  the  U-  hud  conveved  his  interest  therein  to  the  lessor  of  the  plain- 
tie  against  any  one  .„.        ,i,         i,          .  .       r    TI/I        i    ^ 
not  claiming  Im-    tilt  by  deed  dated  the  14th  of  March  1792,  the  witness  not 

'"  e-  J°ininS  in  the  conveyance. 


thera/ewec-o^er/     The  defendants  objected  to  both  depositions,  as  well   on, 

is  a  good  witness       .  irir«i  •  r  •  •       \  • 

to  support  the  ti-  the  ground  or  detects  in  the  notice,  as  01  interest  in  the  wit- 


nesses>  and  the  Court  sustained  the  objections. 

band,  when  her 

Watt*  for  the  plaintiff  in  error. 

The  objections  to  the  depositions  and  witnesses  had  no 
foundation.  It  was  said  the  notice  has  no  date  ;  but  it  was 
served  on  the  2d  of  December,  and  referred  to  the  27th  of 
the  present  month  ,•  of  course  the  delivery  fixed  the  date. 
Another  objection  was,  that  the  notice  was  given  only  to 


OF  PENNSYLVANIA. 


501 


one  defendant ;  but  it  was  given  to  him  upon  the  land,  and 
notice  to  one  is  notice  to  all  in  a  joint  trespass.  At  all  events" 
it  authorized  the  reading  of  the  deposition  against  him.  A 
third,  that  the  name  of  Spangler  was  not  mentioned  ',  but 
there  was  no  other  Spongier  an  innkeeper  in  Tork  but 
Samuel,  and  the  defendants  did  not  attend  at  any  Span- 
gler's.  If  they  had,  the  objection  would  have  had  colour. 
The  last  objection  to  the  notice,  was  the  length  of  time  it 
allowed.  This  was  in  the  defendants'  favour  ;  and  whether  or 
not,  they  cannot  set  it  up  as  a  defect,  when  they  did  not 
attend  at  any  hour. 

Spangler  was  a  perfectly  good  witness.  Having  warrant- 
ed only  against  himself,  his  heirs,  and  the  heirs  of  Hahn^ 
he  had  no  interest  either  in  this  suit  or  question.  The  ven- 
dor of  lands  is  a  good  witness  to  shew  title,  except  where 
his  warranty  interferes.  Twambly  v.  Henly  (a). 

Margaret  Dowdle  was  also  a  good  witness  to  establish 
the  title,  because  although  she  might  have  had  a  contingent 
interest  in  the  question,  she  could  not  have  given  the  ver- 
dict in  evidence  in  a  suit  for  her  dower,  Jackson  v.  Bard 
(6),  and  Jackson  v.  Van  Dusen  (c),  are  conclusive.  The  lat- 
ter is  in  point,  Peake's  Ev.  151. 

Burnside  and  Duncan  contra. 

The  notice  did  not  contain  sufficient  certainty.  Though 
the  same  may  not  be  requisite,  as  in  a  notice  to  execute  a 
writ  of  inquiry,  it  should  have  at  least  certainty  to  a  com- 
mon intent,  in  like  manner  as  notice  of  a  bill  to  perpetuate 
testimony,  or  of  the  appointment  of  arbitrators.  Here  there 
was  no  distinctness  either  of  person  or  place.-  In  point  of 
time  too,  the  notice  took  too  great  a  range.  Can  it  be  re- 
quired of  a  party,  that  he  shall  wait  nine  hours  upon  his 
opponent?  It  at  most  should  have  allowed  but  two  hours, 
Crompt.  285,  and  should  have  been  served  upon  all  the  de- 
fendants. Crompt.  286.  The  defendants  may  defend  sepa- 
rately, under  distinct  titles.  The  joint  trespass  in  the  eject- 
ment is  a  fiction.  The  Court  cannot  know  how  they  claim, 
Until  they  open  their  titles. 

Spangler>s  deed  contained  a  warranty  against  Hahrfs 
heirs,  and  it  did  not  appear,  but  that  some  one  of  the  de- 
fendants claimed  under  Hahn. 


1814. 


Lessee  of 
SWEITZER 

V. 

MEESE 
etal. 


(o)  4  J/ass.  441 . 


(/>)   HJohns.  130. 


(c)  5  Johns.  14V. 


502 


CASES  IN  THE  SUPREME  COURT 


1814. 


Lessee  of 
SWEITZER 

V. 

MEESE 
etal. 


Margaret  Dawdle  was  interested  in  the  event,  because  if 
Sweitzer  recovered  under  her  husband,  she  might  give  the 
verdict  in  evidence  against  Sweitzer,  to  shew  he  made  title, 
and  got  possession  under  her  husband.  In  case  of  Sweitzer's 
failure,  she  could  not  recover  against  a  stranger,  without 
proving  her  husband's  title  and  seizin.  She  stood  as  a  re- 
mainder man,  who  cannot  be  a  witness,  though  the  heir 
may.  Her  right,  though  inchoate,  commenced  on  the  mar- 
riage. 2  El.  Com.  131.,  2  Bac.  387,  Dower  G.  Jackson  r. 
Van  Dusen,  is  supported  by  no  other  case.  It  appears  to 
have  been  ruled  by  Jackson  v.  Bard,  which  is  totally  dif- 
ferent from  it* 

TILGHMAN  C.  J.  gave  no  opinion,  having  been  sick 
during  the  argument. 

YEATES  J.  Two  bills  of  exceptions  have  been  sealed  by 
the  Court,  upon  their  overruling  the  depositions  of  Rudolph 
Spongier,  and  Margaret  Dowdle,  which  were  offered  in 
evidence  on  the  part  of  the  plaintiff. 

The  objections  taken  to  them,  are  grounded  on  the  want 
of  proper  notice  being  given  under  the  rule  of  court  to  the 
adverse  parties,  previously  to  the  witnesses  being  examined, 
as  well  as  a  supposed  interest  in  the  witnesses  themselves. 

It  has  been  contended,  1.  That  the  notice  to  take  the 
depositions  at  the  house  of  — —  Spongier  inn-keeper  in 
Torktown  was  uncertain;  because  there  might  be  twenty 
persons  of  that  name  keeping  inns  in  Tork.  2.  The  notice 
bears  no  date  on  the  face  of  it.  3.  The  time  of  taking  the 
depositions  was  stretched  to  an  unreasonable  extent  j  but  at 
all  events  they  were  taken  too  early.  4.  The  notice  was 
served  on  George  Meese  one  of  the  defendants  only,  and 
ought  to  have  been  served  on  all  of  them. 

As  to  the  first  objection,  I  answer  that  it  does  not  appear 
there  were  more  persons  than  one  of  the  name  of  Spongier 
inn-keeper  in  Tork.  If  the  defendants  had  attended  on  the 
day  appointed  at  the  inn  of  any  Spongier  in  York,  and  been 
led  by  the  form  of  the  notice  into  a  mistake,  the  exception 
would  have  prevailed.  But  it  is  admitted  that  neither  of  the 
defendants  nor  any  one  in  their  behalf,  did  take  any  step  in 
consequence  of  the  notice. 


OF  PENNSYLVANIA. 


503 


The  notice  given,  was  u  to  take  depositions  at  York  on 
"  the  27th  day  of  the  present  month  of  December,  between" 
"  ten  o'clock  in  the  morning  and  seven  o'clock  in  the  even- 
"  ing  of  the  same  day,"  and  was  proved  by  Isaac  Weideman 
to  have  heen  served  on  George  Meese  one  of  the  defendants, 
on  the  lands  in  question,  on  the  2d  of  December  1809.  It 
appears  by  the  depositions,  that  they  were  taken  at  the 
house  of  Samuel  Spongier  inn-keeper  in  York,  upon  the 
27th  of  December  1809,  at  five  o'clock  in  the  afternoon. 
These  facts  obviate  any  seeming  difficulties  on  the  second 
exception.  The  service  of  notice  on  the  2d  of  December 
1809,  supplies  the  defect  of  date;  for  on  the  27th  of  that 
month  the  depositions  were  to  be  taken.  Allo\\  ing  the  de- 
fendants an  interval  of  nine  hours  on  a  particular  day,  at  an 
inclement  season  of  the  year,  when  unforeseen  difficulties 
might  obstruct  their  journey,  was  a  real  benefit  to  them  ; 
and  if  they  or  any  one  in  their  behalf  had  attended  at  any 
time  before  seven  o'clock,  and  were  prevented  from  having 
the  witnesses  cross  examined,  the  objection  would  have  held 
good.  I  explicitly  assert,  that  I  would  hold  any  notice  bad, 
which  would  probably  deprive  the  adversary  of  his  undoubt- 
ed right  to  put  his  own  questions  to  the  witness.  On  this 
subject  I  hare  heretofore  expressed  my  sentiments  in  Shee- 
ler  v.  Spear,  3  Rinney  134,  which  I  still  retain.  The  form 
of  notice  to  take  depositions  has  no  general  rule  but  one, 
that  it  should  contain  convenient  certainty  as  to  the  time 
and  place  of  taking  them.  We  should  avoid  a  laxity  which 
may  tend  to  defeat  the  benefit  of  a  cross  examination  by  the 
adverse  party.  The  notice  should  be  sufficiently  correct  to 
inform  him  when  and  where  he  should  attend.  It  is  obvious 
that  a  notice  to  take  depositions  in  a  populous  city,  should 
be  more  special,  as  to  the  designation  of  place,  than  when 
intended  to  be  taken  in  a  town  of  inconsiderable  extent. 

If  George  Meese  had  been  the  landlord,  a  notice  served 
on  him  would  be  sufficient  to  entitle  the  plaintiff  to  read  the 
depositions,  as  to  all  the  defendants.  This  does  not  appear, 
and  I  agree  we  are  not  at  liberty  to  travel  out  of  the  record. 
The  titles  of  the  defendants  were  not  disclosed  when  the 
evidence  was  offered.  Take  then  the  strongest  case  that  can 
be  supposed  for  them,  in  support  of  the  fourth  objection, 
that  they  held  under  distinct  rights.  In  such  instance,  each 


1814. 


Lessee  of 
SWEITZER 

v. 

MEESE 
etal. 


504 


CASES  IN  THE  SUPREME  COURT 


1814. 


Lessee  of 
SWEITZER 

V. 

MKESE 
etal. 


defendant  might  defend  his  separate  possession  according 
"to  its  relative  merits.  In  this  state  of  things  the  deposition 
would  be  good  evidence  as  to  George  Meese,  but  not  as  to 
Jacob  Meese  or  Adam  Cross  the  other  defendants,  and  the 
jury  should  have  been  instructed  accordingly,  when  this 
ground  of  exception  was  urged  to  the  deposition. 

I  do  not  adopt  the  principle  urged  by  one  of  the  plain- 
tiff's counsel,  that  service  of  the  notice  upon  one  of  the 
defendants)  on  the  lands  in  controversy,  renders  the  service 
good  as  to  all ;  because  different  defendants  may  have  dif- 
ferent grounds  of  defence.  I  take  the  general  practice  to  be, 
to  give  notice  to  the  active  plaintiff  or  defendant,  who  con- 
ducts the  suit,  but  to  avoid  all  misconceptions  in  such  cases, 
it  is  most  prudent  to  provide  for  them  by  the  terms  of  the 
rule.  In  many  instances  it  would  be  impracticable  to  give 
notice  to  all  the  parties  in  the  suit,  whether  plaintiffs  or 
defendants. 

It  has  been  further  insisted,  that  Rudolph  Spongier  was 
disqualified  from  giving  evidence  on  the  ground  of  interest. 
It  is  stated  that  on  the  25th  of  March  1797,  Rudolph  Spon- 
gier and  wife  conveyed  to  the  lessor  of  the  plaintiff  one 
moiety  of  the  lands  in  controversy,  with  covenant  of  special 
warranty  against  himself  and  his  heirs,  and  against  the 
heirs  of  Michael  Hahn,  who  in  his  life  time  articled  to  con- 
vey to  Spongier.  The  defendants'  counsel  say,  it  does  not 
appear  but  that  they  might  have  claimed  under  Michael 
Hahn  or  his  heirs,  in  which  case  Spongier  could  not  be  re- 
ceived as  a  witness.  What  is  this,  but  in  effect  asserting 
that  Spongier  was  interested,  because  by  possibility  he 
might  be  interested?  The  general  rule  of  law  is  agreed  to 
be  that  a  vendor  of  lands  is  a  good  witness  to  shew  title, 
when  there  is  no  covenant  of  warranty.  If  the  defendants 
meant  to  rely  on  an  exception  to  that  rule,  it  was  incumbent 
upon  them  to  establish  the  facts  upon  which  this  exception 
was  founded,  that  in  truth  they  held  possession  under  the 
heirs  of  Michael  Hahn. 

As  to  Margaret  Doivdle,  I  consider  her  a  competent 
witness.  If  she  should  hereafter  claim  dower  in  the  lands 
in  controversy,  her  right  would  be  the  same  precisely, 
whether  it  was  demanded  by  her  writ  against  the  lessor  of 
the  plaintiff,  or  the  defendant  in  this  suit.  In  either  instance 


OF  PENNSYLVANIA. 


505 


it  would  be  incumbent  on  her  to  establish  her  claim  by  legal 
proof  of  the  seizin  of  her  husband  either  actual  or  legal  in 
these  lands,  without  which  she  could  not  recover.  She  could 
not  claim  under  the  plaintiff,  but  under  her  marriage  and 
the  supposed  seizin  of  her  husband,  and  whatever  might  be 
the  result  of  the  present  trial,  it  was  res  inter  alios  acta,  and 
the  verdict  could  neither  be  given  in  evidence  lor  or  against 
her.  It  is  so  adjudged  in  the  two  cases  in  New  Tork, 
4  Johns.  233.,  5  Johns.  158.  The  utmost  extent  to  which 
the  objection  could  go,  would  be  restrained  to  her  credit. 
She  might  be  said  to  be  interested  in  the  question  then  to 
be  tried,  but  this  according  to  our  uniform  decisions  does 
not  form  an  objection  to  her  competence.  It  is  similar  to 
different  underwriters  on  the  same  policy  of  insurance 
being  received  as  witnesses. 

I  think  there  was  error  in  overruling  the  depositions  of 
either  of  the  witnesses,  that  the  judgment  below  be  reversr 
ed,  and  a  venire  facias  de  novo  be  awarded. 

BRACKENRIDGE  J.  In  an  ejectment  between  two  alienees 
claiming  under  the  same  grantor,  but  claiming  subject  to 
the  wife's  right  of  dower,  which  was  the  New  Tork  case 
4  Johnson  23O,  there  can  be  no  doubt  but  that  the  wife 
may  be  a  competent  witness;  for  it  can  make  no  difference 
with  her,  which  of  them  takes  the  two  thirds,  or  that  in- 
terest whatever  it  may  be  to  which  she  is  not  entitled.  The 
New  Tork  case,  4  Johns.  230,  was  that  of  a  widow  totally 
disinterested  as  to  which  of  the  alienees  made  out  a  title 
by  their  deeds  from  the  husband.  Her  claim  of  dower  re- 
mained unaffected  either  as  to  the  right  or  the  facility  of 
recovery  against  either  of  them  in  a  proceeding  for  her 
dower.  The  case,  5  Johnson,  is  ruled  upon  the  strength  of 
this,  and  if  it  is  the  same  or  a  similar  case,  that  of  two  per- 
sons claiming  under  the  husband  of  the  widow,  who  is  en- 
titled to  dower,  it  could  make  no  difference  to  her  which  of 
them  succeeded,  and  the  verdict  could  not  be  given  in  evi- 
dence in  such  case,  being  irrevelant  and  proving  nothing. 
That  is,  it  could  have  no  bearing  on  the  question  as  be- 
ween  her  and  either  of  these,  to  shew  her  right  of  dower 
in  the  estate  which  both  claimed  under  the  same  grantor  or 
ancestor  in  the  case. 

VOL.  VI.  3  S 


1814. 


Lessee  of 
SWEITZER 

V. 

MKESE 
et  al. 


506 


CASES  IN  THE  SUPREME  COURT 


1814. 


Lessee  of 

SWEITZER 

v. 

MEESE 
et  al. 


But  take  the  case  before  us  and  apply  principle;  for  it 
must  be  the  same  case  where  you  apply  precedent.  Even  a 
case  of  cattle  running  at  large^  cannot  always  be  said  to  be 
a  case  upon  all  fours,  for  it  is  not  in  that  sense  of  the  word 
that  the  maxim  is  applied  nullum  simile  est  idem,  or  nullum 
simile  quatuor  pedibus  currit. 

The  present  case  is  that  of  an  adverse  claim  to  the  title 
of  the  husband  of  the  witness.  If  it  succeeds,  it  must  change 
the  possession  of  the  person  holding  under  the  husband,  or 
in  other  words  deriving  title  from  him.  He  sets  up  a  title 
paramount  to  the  husband  and  the  wife,  and  he  claims 
above  them  both.  The  title  set  up  is  adverse  to  them  both, 
and  it  is  for  the  whole  possession  that  had  been  of  the  hus- 
band and  wife.  Has  not  the  widow  an  immediate  interest  in 
defending  herself  with  the  tenant  in  common,  a  tenancy  in 
law,  if  not  mfact?  It  is  true  she  may  recover  her  dower 
against  the  adversary,  should  he  get  into  possession  of  the 
whole,  but  in  that  case  she  must  establish  not  only  her  mar- 
riage &c.,  but  she  must  go  on  and  prove  original  title  in 
the  husband.  This  she  has  no  occasion  to  do  against  a  per- 
son claiming  under  the  husband.  It  will  be  sufficient  to  shew 
the  conveyance  to  him,  and  that  he  got  into  possession  by  a 
verdict  and  judgment  and  an  habere  facias  possessionem 
under  that  judgment,  which  must  conclude  him  as  to  the 
necessity  of  her  proving  an  original  title  in  the  husband. 
The  proceedings  in  this  case  therefore  could  be  given  in 
evidence,  as  shutting  his  mouth  to  say  that  she  was  not  en- 
titled to  dower  in  this  estate  on  the  ground  of  not  being  the 
husband's.  This  on  a  suit  between  Sweitzer  and  the  widow 
Dowdle.  This  not  on  the  ground  of  a  verdict  being  given 
in  evidence,  being  between  the  same  parties,  and  on  the 
same  points,  but  as  proof  how  and  in  what  manner  Sweitzer 
came  into  possession,  and  that  he  derived  title  from  the  hus- 
band, after  shewing  which,  how  could  he  contest  her  right 
of  dower  ?  It  must  facilitate  her  recovery  very  greatly  to 
have  to  do  with  Sweitzer  rather  than  with  Meese  who 
claims  paramount,  and  will  put  her  to  the  trouble  of  prov- 
ing title  in  her  husdand  as  well  as  in  herself.  The  first  so 
far  as  respects  Sweitzer  was  already  proved  by  his  recover- 
ing under  it.  The  last  could  be  more  easily  made  out,  her 
right  to  recover  dower  in  what  was  her  husband's. 


OF  PENNSYLVANIA. 


507 


How  can  it  be  said  what  weight  the  widow's  testimony 
had  in  establishing  the  original  title  of  her  husband  ?  It  was  * 
necessary  to  the  proof,  otherwise  it  would  not  have  been 
adduced.  We  are  not  to  suppose  that  the  title  could  have 
been  established  without  it ;  for  where  an  ounce  is  neces- 
sary to  make  up  a  pound,  there  must  be  that  ounce.  In  a 
suit  for  her  dower  against  Meese,  claiming  paramount  to 
her  husband,  she  must  prove  the  seizin  or  original  title  of 
the  husband  as  against  him.  But  she  cannot  use  her  own 
testimony ;  and  therefore  she  will  want  this  to  complete  the 
weight,  that  outweighed  before.  As  against  Sweitzer  she 
need  not  prove  original  title,  and  therefore  can  do  without 
it.  She  can  show  the  derivation,  and  the  only  question  can 
be,  has  her  right  of  dower  passed  by  the  conveyance  from 
her  husband  or  otherwise  been  taken  away,  as  by  a  sale  for 
debts  &c.  This  distinction  I  threw  out  in  the  breaking  of 
the  case,  but  it  did  not  seem  to  be  attended  to,  if  it  could 
be  answered;  but  which  I  thought  nevertheless,  was  the 
only  thing  that  was  to  be  considered.  The  counsel  appear 
to  me  to  have  been  misled  by  the  New  Tork  cases,  and  the 
indistinct  manner  in  which  the  law  is  laid  down  by  them. 
They  decide  the  matter  right,  at  least  in  the  case  in  4  John- 
son, but  they  do  not  distinguish  in  their  reasons  as  I  could 
have  wished. 

If  we  analyze  the  case  before  us,  we  must  see  that  the 
widow  must  have  a  direct  interest  in  establishing  her  hus- 
band's title,  because  it  is  only  on  establishing  that  title  that 
she  can  have  any  right. 

But  it  would  seem  to  me  that  the  rejection  of  Spangler*s 
deposition  was  error,  and  that  he  could  not  be  said  to  be 
interested  in  the  then  ejectment.  He  had  covenanted  against 
the  heirs  of  Hahn,  but  the  heirs  of  Hahn  were  not  deman- 
dants here,  but  a  claim  of  title  paramount.  A  warranty  may 
be  special,  as  being  against  the  grantor,  or  those  claiming 
under  him,  or  against  a  particular  person.  It  is  not  any 
deriving  title  under  the  grantor  or  the  particular  person 
warranted  against,  that  here  claims. 

As  to  the  notice  it  is  informally  and  unskilfully  made 
out ;  but  I  believe  it  may  do.  It  is  directed  to  all  the  defen- 
dants and  served  upon  one.  The  defendants  had  all  appeared 
by  the  same  attorney,  and  defence  was  taken  for  them  all. 


1814. 


Lessee  of 
SWEITZER 

•v, 

MEESE 
et  al. 


508 


1814. 


Lessee  of 
SWEITZER 

V. 

MEESE 
et  al. 


CASES  IN  THE  SUPREME  COURT  &c. 

It  is  on  these  two  grounds  only  that  I  am  willing  to  reverse 
the  judgment. 

There  was  something  said  about  personal  estate  compen- 
sating the  widow  in  lieu  of  dower,  which  I  could  not  com- 
prehend, unless  by  interrupting  the  counsel  and  asking 
questions  on  the  law  or  fact,  to  which  they  alluded,  but 
which  interruption  they  did  not  seem  to  like ;  so  that  not 
understanding  it,  I  am  obliged  to  lay  this  part  of  the  argu- 
ment out  of  my  consideration. 

Judgment  reversed. 


END  OF  JUNE  TERM,  MIDDLE  DISTRICT,  1814. 


APPENDIX. 


609 


9«  M'CLENACHAN  against  CUR  WEN.*  Philadelphia, 

Saturday, 

TRESPASS  quare  clausum  free-it.   The  following  case  * 
7  .    .  e     \        n  Tne   Common- 

Was  stated  for  the  opinion  of  the  Court,  and  agreed  to  wealth  has  a  con- 

be  considered  in  the  nature  of  a  special  verdict.  iSS  at™0- 

pike  company  to 
lay  out  a  road 

Under  the  act  of  assembly,  passed  the  9th  April  1  792,  through  the  pri- 
entitled  "  An  act  to  enable  the  governor  of  the  Common  theeci£zen^ith. 
"  wealth  to  incorporate  a  companv  for  making  an  artificial  out  m»king  com- 

•        •  .  pensatiou  tor 

**  road  from  the  city  of  Philadelphia  to  Lancaster,  a  com-  the  soil. 
pany  was  incorporated  by  the  name  stile  and  title  of  "  The 
"  President,  Managers  and  Company  of  the  Philadelphia  & 
**  Lancaster  Turnpike  Road,"  for  the  purpose  of  making  an 
artificial  road  from  the  city  of  Philadelphia  to  the  borough 
of  Lancaster,  which  road  was  under  the  authority  of  that 
law,  laid  out  by  the  said  Company,  over  the  cleared,  tilled 
and  enclosed  lands  of  the  plaintiff,  situated  in  Chester  coun- 
ty, and  was  afterwards  made  and  completed  in  such  manner 
as  in  the  said  act  is  mentioned. 

Afterwards,  to  wit,  on  the  1st  day  of  August  1794,  the 
defendant,  then  being  superintendant  for  the  said  Company, 
and  acting  by  their  commands,  entered  on  the  aforesaid  land 
of  the  plaintiff,  along  the  route  or  tract  so  laid  out  for  the 
said  road;  and  for  the  length  of  100  perches,  and  in  breadth 
50  feet,  over  and  along  the  said  route  or  tract,  dug  up  the 
cleared  and  enclosed  land  of  the  plaintiff,  and  overlaid  the 
same  with  stones  and  gravel  for  the  said  road,  and  also  then 
and  there  threw  down  the  enclosure  of  fence  of  the  said 
plaintiff,  over  and  across  the  said  route  or  tract. 

No  appraisement  of  the  land  so  overlaid,  nor  of  the  dam- 
ages done  by  throwing  down  the  said  inclosure,  has  ever 

*  This  case  is  inserted  at  the  request  of  the  Chief  Justice,  from  a  report  in  his 
possession.  It  is  of  obvious  importance,  not  merely  from  its  containing  some 
valuable  facts  connected  with  the  early  history  of  .Pennsylvania,  but  from  itsset- 
Uing  a  much  litigated  point  of  constitutional  law. 


510 


CASES  IN  THE  SUPREME  COURT 


1802. 


M'CLENA- 
CHAN 

V. 
CURWEN. 


been  made,  nor  has  any  money  ever  been  paid  or  tendered 
to  tn-e  sa'^  plaintiff  for  the  same,  nor  was  his  permission 
ever  obtained  for  the  entry  upon,  or  overlaying  the  said 
route  or  tract,  or  breaking  down  his  said  inclosure. 

On  the  llth  July  1681,  William  Penn,  the  first  proprie- 
tor of  Pennsylvania,  made  and  executed  a  certain  instru- 
ment in  writing,  entitled  "  Certain  conditions  or  concessions 
"  agreed  upon  by  William  Penn  proprietary  and  governor 
"  of  the  province  of  Pennsylvania,  and  those  who  are  the 
"  adventurers  and  purchasers  in  the  same  province."  (Prout 
the  same  instrument)  (a). 

No  such  great  roads  or  highways,  as  in  the  said  written 
instrument  are  mentioned,  were  first  laid  out  and  declared 
to  be  for  highways,  before  the  dividend  of  acres  was  laid  out 
for  the  purchasers;  but  in  lieu  thereof,  and  with  the  assent 
of  the  said  William  Penn  an$  the  adventurers  and  purcha- 
sers, an  allowance  for  such  roads  and  highways  of  six  acres 
for  every  hundred  acres,  over  and  beyond  the  said  quantity 
of  every  hundred  acres,  was  from  the  first  settlement  of 
Pennsylvania  made  by  the  said  William  Penn,  in  all  his 
grants  of  lands  in  Pennsylvania,  for  which  said  allowance  no 
price  or  sum  of  money  was  ever  charged  or  paid;  and  a  like 
allowance  for  the  like  purpose  hath  ever  since  been  made 
by  the  successors  of  the  said  William  Penn,  and  by  the  state 
of  Pennsylvania. 

It  is  agreed,  that  all  acts  of  assembly  of  Pennsylvania, 
whether  now  in  force  or  not,  that  either  party  'may  think 
material,  shall  be  considered  as  a  part  of  this  case. 

(a)  The  only  material  section  of  the  concessions,  is  the  first,  which  is  in  the 
following  terms  : 

"That  so  soon  as  it  pleaseth  God  that  the  abovesaid  persons  (the  proprietary 
"  and  adventurers  and  purchasers  in  the  province)  arrive  there,  a  certain  quantity 
"of  land  or  ground  plot  shall  he  laid  out  for  a  large  town  or  city,  in  the  most 
"  convenient  place  upon  the  river  for  health  and  navigation,  and  every  purchaser 
"and  adventurer  shall  by  lot,  have  so  much  land  therein,  as  will  answer  to  the 
"  proportion  which  he  hath  bought  or  taken  up  upon  rent;  but  it  is  to  be  noted, 
"  that  the  surveyors  shall  consider  what  roads  or  highways  will  be  necessary  to 
"  the  cities,  towns,  or  through  the  lands.  Great  roads  from  city  to  city,  not  to  con- 
"  tain  less  than  forty  feet  in  breadth,  shall  be  first  laid  out,  and  declared  to  be 
"for  highways,  before  the  dividend  of  acres  be  laid  out  for  the  purchaser,-  and 
"  the  like  observation  to  be  had  for  the  streets  in  the  towns  and  cities,  that  there 
"  may  be  convenient  roads  and  streets  preserved,  not  to  he  encroached  upon  by 
"  any  planter  or  builder,  that  none  may  build  irregularly  to  the  damage  of  ano- 
"  ther.  In  this  custom  governs." 


OF  PENNSYLVANIA. 

If  upon  these  facts,  the  law  shall  be  with  the  plaintiff, 
judgment  shall  be  rendered  for  him,  and  a  writ  of  inquiry 
of  damages  awarded  tor  him  ;  but  if  the  law  shall  be  with  the 
defendant,  then  the  judgment  shall  be  rendered  for  him. 

T.  ROSS  pro  quer. 

W.  LEWIS  pro  deft. 

SHIPPEN  C.  J.  now  delivered  the  opinion  of  the  Court;  but 
Yeates  ].  being  a  stockholder  of  the  company,  took  no  part 
in  the  decision. 

This  is  an  action  of  trespass  brought  against  the  superin- 
tendant  of  the  artificial  road,  leading  from  Philadelphia  to 
Lancaster,  called  the  Turnpike  Road,  for  entering  upon  the 
cleared,  tilled  and  enclosed  lands  of  the  plaintiff,  situate  in 
the  county  of  Chester,  and  digging  up  the  said  land  for  a 
certain  distance,  and  overlaying  the  same  along  the  route  or 
tract  of  the  said  road  with  stone  and  gravel,  and  for  throw- 
ing down  the  inclosure  of  fence  of  the  plaintiff  over  and 
across  the  said  route  or  tract,  without  having  made  any 
compensation  for  said  land,  and  for  the  injury  done  to  his 
improvements. 

The  question  turns  partly  upon  the  validity,  and  partly 
on  the  true  construction,  of  the  act  of  assembly  of  the  9th 
April  1792,  impowering  the  Turnpike  Company  to  make 
this  artificial  road. 

The  validity  of  the  act  is  impeached  by  its  being  repug- 
nant to  the  constitution  of  Pennsylvania,  which  directs  that 
no  man's  property  shall  be  taken  for  public  use,  without  his 
own  consent  or  that  of  his  legal  representatives,  nor  without 
compensation. 

To  this  it  is  answ.ered,  that  the  road  or  tract  of  the  road, 
running  through  the  plaintiff's  land,  was  not  his  separate 
property,  for  that  he  held  it  as  a  trustee  for  the  public,  un- 
der the  grant  of  the  proprietaries  of  Pennsylvania,  in  which 
he  was  allowed  beyond  the  quantity  of  land  actually  pur- 
chased and  paid  for,  six  per  cent,  for  roads  and  highways. 

This  will  lead  us  to  consider  the  different  kinds  of  lawful 
roads  and  highways  in  Pennsylvania.  There  are  and  have 
been  for  a  great  length  of  time,  three  different  kjnds  of 
roads.  1st.  The  great  provincial  roads,  called  in  the  act  of 
1700,  the  "  king's  highways"  or  "  public  roads,"  which  were 


511 


1802. 


M'CLENA- 
CHAN 

V. 
CUUWEN. 


512 


CASES  IN  THE  SUPREME  COURT 


1 802.        laid  out  by  order  of  the  governor  and  council.  2d.  The  roads 

M'CLENA-    or  cartways  leading  to  such  great  provincial  roads,  laid  out 

CHAN        by  order  of  the  justices  of  the  county  courts,  after  a  return 

v.  of  certain  viewers,  that  the  same  was  necessary  for  the  con- 

CURWEN.     venience  of  the  public.  Such   parts  of  these  roads  as  run 

through  any  man's  improved  ground,  were  to  be  paid  for 

out  of  the  county  stock.  The  third  kind  were  called  private 

roads,  likewise  laid  out  by  order  of  the  county  court,  on 

the  application  of  any  persons  for  a  road  to  be  laid  out  from. 

or  to  their  plantations  or  dwelling  places,  to  or  from  the 

highways.    The    improved   grounds   through  which  these 

roads  were  run,  were  directed  to  be  paid  for  by  those,  at 

whose  request  and  for  whose  use  the  same  were  laid  out. 

As  to  the  first  of  these  roads,  called  in  the  act  the  kin^s 
highways  or  public  roads,  they  were  one  of  the  objects  of 
what  is  called  concessions  made  by  the  first  proprietor,  Wil- 
liam Perm,  to  those  original  purchasers  in  England,  by 
whose  assistance  he  expected  to  found  the  colony.  By  this 
instrument  dated  llth  July  1681,  it  was  agreed  that  when 
the  adventurers  should  arrive  here,  a  certain  quantity  of 
land,  or  ground-plat,  should  be  laid  out  for  a  large  town  or 
city,  upon  the  river  Delaware;  that  every  purchaser  should 
by  lot  have  so  much  land  therein  as  would  answer  to  the 
proportion  which  he  had  bought  in  the  country.  But  pre- 
viously to  laying  the  dividends  for  each  purchaser,  it  was 
directed,  that  the  surveyor  should  lay  out  the  great  roads 
from  city  to  city,  or  to  great  towns,  as  well  as  the  streets 
in  the  great  towns  or  cities.  The  grounds  to  be  occupied  by 
these  great  roads  and  streets,  were  evidently  to  be  out  of 
the  proprietor's  lands  alone.  On  the  arrival  of  the  adventu- 
rers in  this  country,  it  was  found  very  practicable  to  lay  out 
streets  in  one  great  city,  which  was  accordingly  done ;  but 
quite  impracticable  to  lay  out  the  great  roads  or  highways 
from  city  to  city,  as  only  one  city  was  then  contemplated. 
But  as  such  great  roads  were  to  be  laid  out  over  the  land  of 
the  proprietor  alone,  and  the  purchasers  were  not  to  con- 
tribute, it  was  at  length  agreed  and  sanctioned  by  the  early 
laws  of  the  province,  that  in  lieu  of  the  impracticable  plan 
settled  in  England,  there  should  be  an  additional  quantity 
of  land  granted  to  each  purchaser  without  price  or  rent,  to 
enable  him  to  contribute  without  loss  to  such  public  roads 


OF  PENNSYLVANIA. 


513 


as  should  thereafter  be  found  necessary  for  the  use  of  the 
inhabitants.  In  this  plan  there  was  evidently  a  chance  that " 
the  purchaser  might  be  either  a  gainer  or  loser  in  the  event, 
as  it  was  then,  and  would  probably  continue  for  a  long  time, 
uncertain,  how  much  of  each  man's  land  would  be  found 
necessary  for  such  public  roads.  The  quantity  of  six  per 
cent,  was  however  fixed  as  the  permanent  quantity  to  be 
addi  d  to  every  man's  land  for  that  purpose  ;  and  from  that 
earlv  period  to  the  present  time,  no  grant  has  been  made 
either  by  the  proprietaries  or  commonwealth,  without  this 
addition  of  six  per  cent.,  expressly  for  the  purpose  of  con- 
tributing to  the  establishing  the  roads  or  highways.  It  is 
true,  it  is  not  for  these  great  roads  alone,  that  they  are  to 
contribute,  as  but  few  of  them  are  necessary;  but  as  by  the 
law  of  170O,  although  a  compensation  is  directed  to  be  made 
for  the  improved  land  of  any  person,  through  which  the  se- 
cond species  of  roads  or  cartways  are  run,  yet  as  to  the 
woodland  or  unimproved  ground,  there  is  no  compensation 
to  be  made,  evidently  contemplating  their  liability  to  con- 
tribute on  account  of  the  additional  six  per  cent,  granted 
them  to  supply  the  roads  and  highways  ; — although  in  this 
early  arrangement,  there  might  be  a  chance  that  certain 
purchasers  might  be  obliged  to  contribute  more  than  six 
per  cent,  to  the  roads,  yet  it  might  possibly  have  been  fore- 
seen, that  scarce  any  instance  of  that  would  occur,  without 
an  equivalent  likewise  accruing  to  the  purchaser,  from  the 
vicinity  of  such  public  roads  to  their  buildings  and  im- 
provements. 

Even  in  the  latter  law,  establishing  private  roads,  the  le- 
gislature appears  to  have  contemplated  the  same  liability 
in  the  purchasers  to  contribute  to  the  roads,  the  allowance 
to  be  made  b\  those  who  use  the  road  being  expressly  con- 
fined to  the  improved  lands,  through  which  such  roads  run; 
considering,  that  though  they  ought  to  be  paid  for  what  by 
their  labour  they  had  made  valuable,  yet  as  to  the  land 
which  lay  in  a  state  of  nature,  they  were  bound  to  contri- 
bute as  much  of  it,  as  by  the  laws  of  the  country,  were 
deemed  necessary  for  the  public  convenience.  If  then,  as 
to  these  inferior  kinds  of  roads,  the  legislature  has  sanc- 
tioned the  original  idea,  can  it  be  doubted,  that  with  regard 
to  the  great  provincial  roads,  being  of  so  much  more  gene- 

VOL.  VI.  3  T 


1802. 


M'CLEMA- 

CHAN 

V. 
CURWEN. 


514 


CASES  IN  THE  SUPREME  COURT 


1802. 

M'CLENA- 

CHAN 

V. 
CURWEN. 


ral  utility,  they  should  be  exempted  from  a  proportionable 
contribution? 

We  cannot  therefore  consider  the  legislature's  applying  a 
certain  portion  of  every  man's  land  for  the  purpose  of  lay- 
ing out  public  roads  and  highways,  without  compensation, 
as  any  infringement  of  the  constitution  ; — such  compensa- 
tion having  been  originally  made  in  each  purchaser's  par- 
ticular grant.  But  it  is  objected,  that  even  if  the  legislature 
might  do  this  themselves,  yet  they  could  not  grant  the  right 
of  doing  it,  to  individuals  or  a  corporate  body,  for  their  own 
emolument,  so  as  to  deprive  the  inhabitants  or  travellers  of 
the  free  use  of  the  road,  by  imposing  tolls  or  other  restric- 
tions in  the  use  of  it.  To  this  it  may  be  answered,  that  such 
an  artificial  road,  being  deemed  by  the  legislature  a  matter 
of  general  and  public  utility, — and  considering  that  it  was 
not  to  be  effected  but  at  a  considerable  expense,  and  that 
the  expense  could  not  be  defrayed,  nor  expected  to  be  de- 
frayed in  the  ordinary  wav,  by  the  inhabitants  of  the  several 
townships  through  which  the  road  was  to  run, — they  devi- 
sed this  mode  of  accommodating  the  public  with  such  a 
road  at  the  expense  of  private  individuals,  who  from  a  pros- 
pect of  deriving  some  small  profit  to  themselves,  might  be 
induced  to  do  it.  It  was  immaterial  to  the  public,  whether 
it  was  done  by  a  general  tax  to  be  laid  on  the  people  at 
once,  or  by  the  gradual  payment  of  certain  specified  sums 
by  way  of  toll  on  those  only  who  used  the  road,  the  latter 
being  considered  as  the  most  equal  mode  of  defraying  the 
charge  of  making  and  keeping  such  road  in  repair  ;  for  al- 
though every  man  has  a  right  to  the  free  use  of  a  public 
road,  yet  every  member  of  the  community  may  be  taxed 
for  making  that  road,  in  any  manner  that  the  legislature 
may  think  reasonable  and  just. 

There  has  been  great  difference  of  opinion  at  the  bar  as 
to  the  ninth  section  of  the  act  (a).  I  have  not  been  without 

(a)  Section  nine.  "  That  it  shall  and  may  be  lawful  to  and  for  the  said  presi- 
dent and  managers,  by  and  with  their  superintendants.  engineers,  artists, 
workmen  and  labourers,  with  their  tools  and  instruments,  carts,  \vaggons, 
wains  and  other  carriages,  and  beasts  of  draft  or  burthen,  to  enter  upon  the 
lands,  in,  over,  contiguous,  and  near  to  which  the  route  and  tract  of  the  said 
intended  road  shall  pass,  first  giving  notice  of  their  intention  to  die  owners 
'  thereof,  or  their  representatives,  and  doing  as  little  damage  thereto  as  possible, 
and  repairing  any  breaches  they  may  make,  in  the  inclosure  thereof,  and  mafc- 


OF  PENNSYLVANIA. 


515 


my  doubts ;  but  have  at  length  satisfied  my  mind  as  to  the 
construction  of  it.  The  words  in,  over,  contiguous  and  near 
to  '.he  route  and  tract  of  the  intended  ro.id,  appear  to  me 
to  include  both  the  tract  of  the  road  and  the  adjacent  lands  ; 
and  th.u  the  words  repairing  the  breaches  they  may  make  in 
the  inclosures  thereof,  and  making  amends  jw  any  damages 
that  may  be  done,  to  any  improvements  thereon,  likewise 
relate  to  both,  but  may  be  satisfied  without  obliging  the 
company  to  erect  new  fences  on  both  sides  of  the  road.  The 
general  breaches  of  inclosure  would  certainly  be  in  cases, 
where  the  fences  run  across  the  intended  road,  and  these 
could  not  be  re-erected  :  but  there  might  be  a  necessity  for 
taking  down  fences  that  run  lengthwise  along  the  tract  of 
the  road.  It  not  having  been  unusual  in  running  roads  and 
laying  out  townships,  in  order  to  avoid  as  much  as  possible 
the  doing  injury  to  the  neighbourhood,  to  run  the  roads  in 
the  line  of  two  neighbouring  tracts,  the  legislature  might 
reasonably  suppose  such  instances  might  occur  in  opening 
this  road ;  and  it  was  therefore  proper  to  oblige  the  com- 
pany to  re-erect  the  fences  by  the  side  of  the  road.  The 
word  repairing  seems  not  to  carry  the  idea  of  new  erec- 
tions, but  restoring  what  had  been  prostrated. 

In  opening  other  roads  public  and  private  of  any  length, 
it  could  scarcely  be  avoided  in  many  instances  to  lay  open 
inclosures;  but  it  has  never  been  contended,  that  either  the 
county  or  private  petitioners  were  obliged  to  repair  them 
by  erecting  new  fences  on  the  sides  of  the  roads.  The  mt-m- 
bers  of  the  legislature  must  have  known  this,  and  would 
therefore  if  they  had  meant  it  in  this  case,  have  provided 
for  it  in  express  words.  The  truth  is,  that  it  has  been  con- 
sidered, that  the  running  of  a  road  through  a  man's  land, 
confers  such  a  benefit  on  him,  as  fully  compensates  him 
generally,  for  the  expense  of  fencing  his  lands  anew. 

1  ins-  amends  for  any  damages  that  may  be  done  to  any  improvements  thereon, 
'  by  appraisement  to  be  made  in  the  manner  herein  after  directed  ;  and  upon  a 
'  reasonable  agreement,  if  they  can  agree,  or  if  they  cannot  agree,  thvn  upon 
'  an  appraisement  to  be  made  upon  oath  or  affirmation,  by  three  indifferent  free- 
'  holders,  or  any  two  of  them  agreeing,  to  be  mutually  chosen,  or  if  the  owners 
'  upon  due  notice  shall  neglect  or  refuse  to  join  in  the  choice,  then  to  be  appoint- 
1  ed  by  any  justice  of  the  peace  of  the  county  not  interested  on  either  side,  and 
'  tender  of  the  appraised  value,  to  dig,  take,  and  carry  away  any  stone,  gravel, 
'  sand,  or  earth,  there  being  most  conveniently  situated  for  making  or  repairing 
'  the  said  road." 


1802. 


M'«    LENA- 
CHAN 

V. 
CURWEN. 


516 


1802. 


M'CLENA- 
CHAN 

V. 
CURWEN. 


CASES  IN  THE  SUPREME  COURT 

I  observed  before,  that  the  words  in,  over,  contiguous  and 
near  to  the  tract  of  the  road,  extended  as  well  to  the  road 
itself,  as  to  the  adjacent  grounds  from  whence  the  materials 
were  to  be  procured,  as  to  the  damage  done  to  the  inclo- 
sure ;  so  likewise  I  consider  it  to  extend  to  both,  as  to 
making  amends  for  any  damages  done  to  the  improvements 
thereon :  and  if  it  has  in  any  case  been  found  necessary  to 
pull  down  houses,  destroy  orchards,  or  spoil  grain  in  the 
tract  or  route  of  the  road,  the  company  are  undoubtedly 
bound  to  make  compensation  to  the  owners,  as  well  as  for  the 
adjacent  ground  from  whence  they  are  to  collect  the  mate- 
rials. In  the  present  case  no  such  damage  is  found;  and  on 
the  whole  case  it  is  our  unanimous  opinion,  that  judgment 
should  be  entered  for  the  defendant. 

Judgment  for  defendant. 


GENERAL  TABLE  OF  CASES 

IN  ALL  THE  VOLUMES. 

THE    CASES   IN    ITALICS    ARE    CITED    FROM    MSS. 


Adams,  Hayden  v. 

Adams  v.  Delaware  Insu- 
rance Co. 

Adams  v.  Thomas 

Addicks,  Commonwealth  v. 

Addis  v.  Commonwealth 

Affleck,  Pearce  v. 

Akewright,  Lessee  of  Ma- 
thers v. 

Alberty,  Dawson  v. 

Alberty,  Reinholdt  v. 

Alberti,  Mann  v. 

Alexander,  Jameson  v. 

Alexander,  Common- 
wealth v. 

Ammons,  Simpson's  Les- 
see v. 

Ancora  v.  Burns 

Anderson,  Carkhuffv. 

Anderson,  Vanatta  v. 

Armroyd  v.  Union  Insu- 
rance Co. 

Armroyd  v.  Union  Insu- 
rance Co. 

Arthurs,  Lessee  of  Kee- 
ble  v. 

Aubel  v.  Ealer 

Aublai  v.  Renouldt 


ii 

232 

iii 

287 

vi 

254 

v 

520 

iv 

541 

iv 

344 

ii 

93 

i 

105 

i 

469 

ii 

195 

v 

238 

vi 

176 

i 

175 

v 

522 

iii 

4 

iii 

417 

ii 

394 

iii 

437 

iii 

26 

ii 

582 

iv 

369 

B 

Bachman's  Case             -  ii  72 

Backhouse,  Jenk's  Lessee  v.  i  91 

Badger,  Jones  v.  v  461 

Bailey,  Watson's  Lessee  v.  i  470 

Bailey  v.  Watson's  Lessee  vi  450 

Baker  v.  Bixler  iv  213 

Baker,  Wallace  v.            -  i  610 

Baker's  Case  i  462 

Baltimore  Turnpike,  Case  of  v  481 

Bancker,  Boggs  v.  v  507 
Bank  North  America  v. 

M'Call                             -  iii  338 
Bank  North  America  v. 

M'Call  iv  371 
Bank  North  America  v. 

Fitzsimons  ii  454 
Bank  United  States,  Cra- 

mond  v.  i  64 
Bank  United  States,  Levy  v.  i  27 
Bantleon  v.  Smith  ii  146 
Barber,  Dennis  v.  -  -  iv  484 
Baring  v.  Shippen  ii  154 
Barker,  Sheriff',  Lyle  v.  v  457 
Barker,  Commonwealth  v.  v  423 
Barker,  Meyer  v.  vi  228 
Barker,  Lippincott  v.  ii  174 
Barlow  v.  The  Common- 
wealth -  -  iii  1 


518 


GENERAL  TABLE  OF  CASES. 


Barnet,  Brown  v. 

Barnet  v.  Hope 

Barnet,  Yohe  v. 

Barry,  Crawford  v. 

Barry,  Peterson  y. 

Barry,  Pearce  v. 

Barry  v.  Randolph 

Biixterv.  Smith 

Beale  v.  Dougherty    - 

Beam,  Douglass  v. 

Bear,  Lessee  of  Stephens  v. 

Beam's  «E.v.,  Douglass  et 
al.  v. 

Seattle,  Roberts'  Lessee  v. 

Beauvarlet,  Petry  v. 

Beelor,  Bell  v. 

Bell  v.  Beelor    - 

Bell  v.  Beveridge 

Benn,Cahill  v. 

Benner  v.  Frey 

Berquier,  Desesbats  v. 

Berryhill  v.  Wells 

Berthon  v.  Keeley 

Bet/,,  Lessee  of  James  v. 

Beveridge,  Bell  v. 

Bickham's  Lessee,  Moore  v. 

Biddis  v.  James 

Biddle,  Lessee  of,  v.  Dougal 

Bigsby,  Lessee  of  Dawson  v 

Billington  Lessee  of,  v. 
Welsh 

Binns  v.  Hudson     - 

Binns,  M'Corkle  v.      - 

Birch,  M'Millan  v. 

Bixler,  Baker  v. 

Blackburn  v.  Markle 

Black,  Boggs  v. 

Blaine,  Commonwealth  v. 

Blair,  Stockman  v. 

Blazer,  Carson  v. 

Blythe  v.  Johns 

Boggs  v.  Bancker 

Boggs  v.  Black 

Boggs'  Lessee  v.  Silvas 

Boggs  v.  Teackle 

Bohlen  v.  Delaware  Insu- 
rance Co. 


11 
v 
i 

i 

iv 
iv 
iii 
vi 
iii 

ii 
iii 


S3 
518 
358 
481 
481 
344 
277 
427 
432 
76 
31 


V 

60 

i 

440 

i 

97 

iv 

127 

iv 

127 

i 

52 

vi 

99 

i 

366 

i 

336 

v 

56 

i 

502 

ii 

12 

i 

52 

iv 

1 

vi 

321 

v 

142 

v 

204 

v 

129 

v 

505 

V 

340 

i 

178 

iv 

213 

vi 

174 

i 

333 

iv 

186 

v 

211 

ii 

475 

v 

247 

v 

507 

i 

333 

iv 

59 

v 

332 

iv 

430 

Boileau,  Vansant  v.  i  444 
Bond,  Lessee  of,  v.  Fitzran- 

dolph  v  214 
Bond  v.  Gardiner  -  iv  269 
Bonsall,  Phillips  v.  -  ii  138 
Bornman  v.  Boyer  -  iii  515 
Bowman,  Enslin  v.  vi  462 
Boyer,  Commonwealth  v.  i  201 
Boyer,  Bornman  v.  iii  515 
Boyer  v.  Herty  v  381 
Boyles  v.  Johnston's  Execu- 
tors -  vi  125 
Brand,  Shaller  v.  vi  435 
Brehman,  Weishaupt  v.  v  115 
Breidenbach,  Haak  v.  vi  12 
Briggs  v.  Dolan  iv  496 
Bringhurst  v.  Cuthbert  vi  398 
Broome,  Sparhawk  v.  -  vi  256 
Brown  v.  Barnet  ii  33 
Brown,  Davidson  v.  -  iv  243 
Brown  v.  Girard  i  40 
Brown's  Heirs,  Hartzel  v.  v  138 
Brown  v.  Lamberton  -  ii  34 
Brown  v.  Phrenix  Insu- 
rance Co.  -  iv  445 
Brown,  Rowley  v.  i  61 
Brown  v.  Scheaffer  -  vi  177 
Brown,  Lessee  of  Simon  v.  ii  44 
Brown,  Lessee  of  Smith  v.  iii  187 
Brown,  Smith  v.  iii  201 
Brown  v.  Vanhorne  -  i  334 
Bryson,  Lessee  of  Laza- 
rus v.  iii  54 
Buchanan's  Lessee  v.  Ma- 

clure  i  385 
Bucher,  Lessee  of  Bur- 

kart  v.  ii  455 

Buckmyer  v.  Dubs       -  v  29 

Buckwalter,  Hamilton  v.  i  572 

Bull,  Sterrett  v.  i  234 

Bull,  Sterrett  v.  i  238 
Burd  v.  the  Lessee  of 

Dansdale                        -  ii  80 

Burd,  M'Dowell  v.     -  vi  198 

Burnes,  Woglam  v.  i  109 

Burns,  Ancora  v.  v  522 

Burns,  Lessee  of  Jackson  v.  iii  75 


GENERAL  TABLE  OF  CASES. 


519 


Burr,  Wilkins  v. 
Bush,  Clemson  v. 
Bush,  Read  v. 
Butler,  Cavence  v. 


Cahill  v.  Benn 

Caines  v.  Lessee  of  Grant 

Calbraith  v.  Grade 

Calhoun  v.  Ins.  Co.  Penn. 

Callan,  Commonwealth  v. 

Callenderv.  Ins.  Co.  N.  A. 

Campbell  v.  Spencer 

Campbell  v.  Lessee  of 
Gratz 

Campbell,  Irvine  v. 

Canal  Company,  Davis  v. 

Canal  Company  v.  Sansorn 

Canby  v.  Ridgvvay 

Carkhuft'v.  Anderson 

Carmack  v  Commonwealth 

Cannalt,  Commonwealth  v. 

Car  others,  Lessee  of  Dun- 
ning v. 

Carpeutier  v.  Delaware  Ins, 
Co. 

Carson  v.  Blazer 

Castator,  Reichart  v. 

Castor,  Snyder  v. 

Caufman  v.  Cedar  Spring 
Congregation 

Cavence  v.  Butler 

Caxton,  Lessee  of  Correy  v, 

Cecirs  Lessee  v.  ICorbman 

Chad's  Ford  Turnpike   u- 

Chaff'ant,  Johnson  v. 

Charnberlin,  Richter  v. 

Champneys  v.  Lisle 

Cheltenham  Turnpike, 
Commonwealth  v. 

Cheriot  v.  Foussat 

Chew,  Hiibley's  Lessee  v. 

Clark  v.  Sanderson 

Clark  v.  Herring 

Clark  v.  Israel 

Clarke  v.  Patterson 

Clark  v.  Yeat 


VI 

iii 
v 
vi 


389] 
413! 

455 1 
52 


vi 

99 

v 

119 

i 

296 

i 

293 

vi 

255 

v 

525 

ii 

129 

vi 

115 

vi 

118 

iv 

296 

i 

70 

i 

496 

iii 

4 

v 

184 

ii 

235 

iii 

110 

ii 

264 

ii 

475 

v 

109 

ii 

216 

vi 

59 

vi 

52 

iv 

140 

i 

134 

v 

481 

i 

75 

vi 

34 

i 

327 

ii 

257 

iii 

220 

iv 

59 

iii 

192 

v 

33 

vi 

391 

vi 

128 

iv 

185 

Clayton  v.  Clayton  iii  476 
Clements,  Commonwealth  v.  vi  206 
Clemson  v.  Bush  iii  413 
Clemson  v.  Davidson  iv  405 
Clemson  v.  Davidson  v  392 
Cluggage,  Lessee  of,  v.  Swan  iv  150 
Coates  v.  Hughes  iii  498 
Cochran,  Commonwealth  v.  i  324 
Cochran,  Commonwealth  v.  ii  270 
Cochran,  Commonwealth  v.  v  87 
Cochran,  Commonwealth  v.  vi  456 
Cochran,  Patterson's  Les- 
see v.  i  231 
Colhoun  v.  Snyder  -  vi  135 
Commissioners  of  Berks 

v.  Ross                                  iii  520 
Commissioners  of  Berks 

v.  Ross                           -       iii  539 
Commonwealth  v.  Addicks      v  520 
Addis  v.          iv  541 
v.  Alexan- 
der           vi  176 
v.  Barker       v  423 
v.  Barlow     iii  1 
v.  Elaine       iv  186 
v.  Boyer          i  201 
v.  Callan       vi  255 
v.  Carmack    v  184 
v.  Chelten- 
ham turnpike  ii  257 
v.  Clements  vi  206 
v  Cochran      i  324 
v.  Cochran     ii  270 
v.  Cochran     v  87 
v.  Cochran    vi  456 
Connor  v.      iii  38 
v.  Cornish     vi  249 
v.  Cornman  iv  483 
County  Com- 
missioners of  Philad.    v  5S4 
Commonwealth  v.  County  Com- 
missioners of  Philad.     v  536 
Commonwealth  v.  County  Com- 
missioners of  Lancaster    vi       5 
Commonwealth  v.  County  Com- 
missioners of  Philad.   vi  597 
Commonwealth  v.  Crevor       iii  121 


520 


GENERAL  TABLE  OF  CASES. 


Commonwealth  v.  Da  vies 

v.  Douglass 
v.  Uuane 
v.  Duane 
Eaton  T. 
v.  Edwards   vi 
v.  Emery 
v.  Emery 
v.  Harkness  iv 
v.  Holloway  v 
v.  Holloway  v 
v.  Holloway  vi 
v.  Immell 
Jackson  v. 
v.  Johnson 
v.  Judges  of 
Common  Pleas  iii 

Commonwealth,  Krcemer  v.  iii 
v.  Lewis 
v.  Long 
v.  Meredith 
v.  Messengeri 
v.  Murray 
v.  North 
v.  Pascalis 
v.  Philanthropic 

Society 
v.  Profit 
v.  Rosseter 
Ruhlman  v. 
v.  Searle 
v.  Shepherd  vi 
Simmons  v. 
v.  Snelling    iv 
v.  Smith 
Spangler  v.  iii 
v.  Sprenger 
v.  St.  Patrick 

Ben.  Soc.  ii 
Sharff  v. 
v.  Taylor 
Turnbull  v. 
Werfel  v. 
White  v. 
White  v. 
v.  Wolbert   vi 
v.  Wood 


i 

97 

Commonwealth  v.  Young 

iv 

113 

i 

77 

Young  v. 

vi 

88 

i 

98 

Connery,  Curren  v. 

v 

488 

i 

601 

Conner  v.  Commonwealth 

iii 

38 

vi 

447 

Cookson  v.  Turner 

ii 

453 

vi 

202 

Cookson  v.  Turner 

iii 

416 

ii 

257 

Cooper  v.  Henderson 

vi 

189 

ii 

431 

Cooper  v.  Ranken 

v 

613 

iv 

194 

Cooper,  Taggart  v. 

iii 

34 

v 

512 

Cope,  Dawes  v. 

iv 

258 

v 

516 

Cornish,  Commonwealth  v. 

vi 

249 

vi 

213 

Cornman,  Commonwealth  v. 

iv 

483 

vi 

403 

Correy,  Lessee  of,  v.  Cax- 

ii 

79 

ton 

iv 

140 

ii 

275 

Correy,  Gordon  v. 

v 

552 

Cosby  v.  Lessee  of  Brown 

ii 

124 

iii 

273 

County  Commiss.  Philad., 

iii 

577 

Commonwealth  v. 

v 

534 

vi 

266 

County  Commis.  Philad., 

v 

489 

Commonwealth  v. 

v 

536 

v 

432 

County  Commis.  Lancaster, 

r  i 

273 

Commonwealth  v. 

vi 

5 

iv 

487 

County  Commis.  Philad., 

i 

97 

Commonwealth  v. 

vi 

397 

i 

37 

Cowgill,  Mitchell  v. 

iv 

20 

>pic 

Cox,  Jennings  v. 

i 

588 

v 

486 

Cox,  Garrigues  v. 

i 

592 

iv 

424 

Cramond  v.  Bank  U.  S. 

i 

64 

ii 

360 

Cranston  v.  Philad.  Ins.  Co. 

v 

538 

v 

24 

Crawford  v.  Barry 

i 

481 

ii 

332 

Cresoe  v.  Laidley 

ii 

279 

vi 

283 

Crevor,  Commonwealth  v. 

iii 

121 

v 

617 

Cromwell,  Lessee  of  Cox  v. 

iii 

114 

iv 

370 

Crousillat  v.  M'Call 

v 

433 

iv 

117 

Crow,  Lessee  of  M'Kinsie 

ii 

105 

iii 

533 

Croxall's  Case 

i 

589 

v 

353 

Cumree,  Reading  v. 

v 

81 

k 

Curry,  Lessee  of  Duncan  v. 

iii 

14 

ii 

441 

Curren  v.  Connery 

v 

488 

ii 

514 

Curwen,  M'Clenachan  v. 

vi 

509 

v 

277 

Cutshall,  Ross's  Lessee  v. 

i 

S99 

i 

45 

Cuthbert,  Bringhurst  v. 

vi 

398 

v 

65 

iv 

418 

D 

vi 

179 

vi 

292 

Dallas,  Woods  v. 

i 

146 

iii 

414 

D'Arcy  v.  Lyle 

v 

441 

GENERAL  TABLE  OF  CASES. 


521 


IV 

iv 
v 
i 

iv 
ii 

iv 
v 
ii 

iv 
v 

iv 

i 


Davidson  v.  Brown 
Davidson,  Clemson  v. 
Davidson,  Clemson  v. 
Davies,  Commonwealth  v. 
Davis  v.  Canal  Company 
Davis,  Havard  v. 
Davis,  Lessee  of,  v.  Keefer 
Davis  v.  Marshall 
Davis,  Milne  v 
Davis,  Salmon  v. 
Davy,  Low  v. 
Dawes  v.  Cope 
Dawson  v.  Alberty    - 
Dawson,  Lessee  of,  v. 

Bigsby 
Dawson,  Lessee  of,  v. 

Laughlin 
Dean,  Kirk  v. 
Dean  v.  Swoop 
Debenneville  v.  Debenne- 

ville 

Delancey,  Lessee  of  Lit- 
tle v. 
Delaunie,  Delaware  Ins. 

Co.  v. 

Delaware  Ins.  Co.,  Adams  v.  iii 
Delaware  Ins.  Co.,  Boh- 

len  v. 
Delaware  Ins.  Co.,  Car- 

pentier  v. 

Delaware  Ins.  Co.  v.  De- 
launie 

Delaware  Ins.  Co.  v.  Gil- 
pin 

Demfisey  v.  Ins.  Co.  Penn- 
sylvania 

Dennis  v.  Barber  &  Co. 
Dennis,  Garwood  v. 
Dennis,  Sulger  v. 
Desesbats  v.  Berquier 
Devcbaugh,  Lessee  of  Bon- 
net v. 

Dickey,  Stultz  v. 
Diehl,  Smith  v. 
Diffedorffer  v.  Jones 
Dilworth/s  Lessee  v.  Sinder- 
ling 

3  U 


243 
405 
392 
97 
296 
406 
161 
382 
137 
375 
595 
258 
105 

204 

214 
341 

72 

46 
266 

295 
287 

430 

264 


iii     295 


111 


iv 


Dixorfs  Lessee  v.  Moore- 
head 

Dolan  v.  Briggs 

Dougall,  Lessee  of  Biddle  v. 

Dougall,  Lessee  of  Biddle  v. 

Dougherty,  Beale  v. 

Douglass  v.  Beam 

Douglass  v.  Beam's  Execu- 
tors 

Douglass,  Commonwealth  v. 

Douglass,  llgenfritz  v. 

Drum  v.  Snyder 

Drum  v.  Lessee  of  Simpson 

Duane,  Commomcealth  v. 

Duane,  Commonwealth  v. 

Duane,  Morris  v. 

Dubosq  v.  Guardians  of  the 
Poor 

Dubs,  Buckmyer  v. 

Ducomb,  Lyle  v. 

Duffield  v.  Smith 

Duncan  v.  Keiffer 

Duncan  v.  Forrer 

Dungan  v.  Mott 

Dunn  v.  French 

Dunvvoody's  Adminis.,  Hus- 
ton v. 

Dusar  v.  Perit 

Dusar,  Welsh  v. 

E 


iv 
iv 
ii 
v 

iii 
ii 


l 

iv 
iii 


59 
496 

37 
147 
432 

76 


V 

60 

i 

77 

vi 

402 

i 

381 

vi 

478 

i 

98 

i 

601 

i 

90 

i 

415 

v 

29 

v 

585 

vi 

302 

iii 

126 

vi 

193 

ii 

201 

ii 

173 

42 
361 
329 


Ealer,  Aubell  v. 

ii 

582 

i 

501 

Eales,  Jack  v. 

iii 

101 

Eaton,  Commonwealth       v. 

vi 

447 

i 

299 

Eaton,  Heydrick  v. 

ii 

215 

iv 

484 

Eberly,  Hamaker  v. 

ii 

507 

iv 

314 

Ebersoll  v.  Krug 

iii 

528 

ii 

428 

Ebersoll  v.  Krug 

iii 

555 

i 

336 

Ebersoll  v.  Krug 

v 

51 

Ebert  v.  Wood 

i 

216 

iii 

175 

Eckart,  Grasser  v. 

i 

575 

v 

285 

Eckart,  Syler's  Lessee  v. 

i 

378 

ii 

145 

Eddy's  Lessee,  Faulkner  v. 

i 

188 

v 

289 

Edwards,  Commonwealth  v. 

vi 

202 

Elder,  Summerl  v. 

i 

106 

i 

488 

Elliot  v.  Elliofr 

v 

522 


GENERAL  TABLE  OF  CASES. 


Ellis,  Hertzogv. 
Emerick  v.  Harris 
Emery,  Commonwealth  v. 
Emery,  Commonwealth  v. 
England,  Lewis  v. 
Englert,  Preston  v. 
Enslin  v.  Bowman 
Etwein,  Rundle  r. 
Evans,  Fisher  v. 
Evans,  Ross  v. 
Evans  v.  Smith 
Evans,  Smith  v. 
Evans,  Webb  v. 
Ewalt,  Lessee  of  Gratz  v. 
Ewing  v.  Tees 
Eyre  v.  Golding 


111 

i 

ii 

ii 

iv 

v 

vi 

vi 

v 

iii 

iv 

vi 

i 

ii 

i 

v 


Fairplay,  Lessee  of  Watson, 

Bailey  r. 

Faulkner  v.  Eddy's  Lessee 
Felmly,  Werdman  v. 
Ferguson  v.  Phoenix  Ins.  Co.  v 
Findlay,  Lessee  of  Steele  v. 
Fisher  v.  Evans 
Fitzrandolph,  Lessee  of 

Bond  v. 
Fitzsimons,  Bank  of  North 

America  v.  -* 

Fitzsimons,  Bank  of  North 

America  v. 

Fitzsimons  v.  Salomon 
Folwell,  Smith's  Lessee  v. 
Forrer,  Duncan  v. 
Fortner,  Lessee  of  Heis- 

ter  v.  t 

Fortune,  Harris  v. 
Foster,  Kelly  v. 
Foster,  Stewart  v. 
Foussat,  Cheriot  v. 
Foussat,  Snell  v. 
Fox,  Grubb  v. 
Fox  v.  Wiicocks 
Franklin,  Wiltv. 
Frazer's  Lessee  v.  Hal- 

lowell 


209 
416 
£57 
431 
5 

390 
462 
136 
541 

50 
366 
102 
565 

95 
450 
472 


1 

vi 

450 

i 

188 

vi 

39 

.  v 

544 

iii 

181 

v 

541 

v 

214 

ii 

454 

iii 

342 

ii 

436 

i 

546 

vi 

193 

ii 

40 

i 

166 

ii 

4 

ii 

110 

iii 

220 

iii 

239 

vi 

460 

i 

194 

i 

602 

i 

126 

Frazer  v.  Tunis 
Frederitzev.  Odenwalder 
French,  Dunn  v. 
French  v.  M'llhenny 
French  v.  Reed 
Frey,  Benner  v. 

G 

Gabbald,  Lessee  of  Ger- 
man v. 

Galbraith,  Lessee  of  Mur- 
ray v. 

Galbraith's  Lessee  v.  Scott 

Gallagher's  Ejcrs.,  Spaf- 
ford  v. 

Gardiner,  Bond  v. 

Garrigues  v.  Coxe 

Garrigues  v.  Reynolds 

Garrigues,  Sparkes  v. 

Garwood  v.  Dennis 

Gettig,  Girard  v. 

Gibson,  v.  Ins.  Co.  Philad. 

Gibson,  Lessee  of  Rogers  v, 

Gilchrist  v.  Ward 

Gilpin  v.  Del.  Ins.  Co. 

Girard,  Brown  v. 

Girard  v.  Gettig 

Girard  v.  Heyl 

Godshall  v.  Mariatn 

Golding,  Kyre  v. 

Good,  Lessee  of  Fehl  v. 

Gordon  v.  Correy 

Gordon  v.  Kennedy 

Gordon,  Lessee  of  Moore  v. 

Gorgas,  Livezey  v. 

Gorgas,  Livezey  v. 

Gourdon  v.  Ins.  Co.  JV*.  A. 

Grade,  Calbraith  v. 

Graham  v.  Hamilton 

Graham,  Lessee  of  M'Clem- 
mons  v. 

Grant,  Lessee  of  Cainesv. 

Grasser  v.  Eckart 

Gratz,  Lessee  of  Campbell  v. 

Gratz  v.  Phillips 

Gratz  v.  Phillips 


i  254 

iv  15 

ii  170 

ii  13 

vi  308 

i  366 


iii    302 

ii      59 
iv     335 

i     590 
iv     269 
i     592 
vi     330 
i     152 
iv     314 
ii     234 
405 
46 
41 
501 
40 
ii     234 
vi     253 
i     352 
v     472 
ii     495 
v     552 
ii     287 
v     136 
i    251 


ii  192 

i  430 

i  296 

i  461 


iii  88 

v  119 

i  575 

vi  115 

i  588 

iii  474 


GENERAL  TABLE  OF  CASES. 


523 


Gratz  v.  Phillips 
Grayson,  Kline  v. 
Greene,  Guardians  of 

Poor  v. 

Greenleaf,  Hilliard  v. 
Greeves  v.  McAllister 
Gregg  v.  Meeker 
Gregory,  Kennedy  v. 
Grier,  Hayes  v. 
Griffith  v.  Ogle 
Griffith  v.  Willing 
Griffith,  Penrose  v. 
Griffith  v.  Ins.  Co.  N.  A. 
Grubb  v.  Fox 
Grubb,  M'Cullough  v. 
Guardians  of  Poor,  Du- 

bosq  v. 

Guardians  of  Poor  v.  Greene 
Guetner,  M'Cullough  v. 
Guier  -v.  O"1  Daniel 
Guier  v.  Kelly 
Guier  v.  M'Faden 
Gurney,  Sims  v. 

H 

Haak  v.  Breidenbach 

Haine,  Heckert  v. 

Hallowell,  Frazer's  Lessee  v 

Hamaker  v.  Eberly 

Hamilton  v.  Buclcwalter 

Hamilton,  Graham  v. 

Hamilton,  Lessee  of  Hus- 
ton v. 

Hamilton,  Lessee  of,  v. 
Marsden 

Hantz  v.  Hull 

Hantz  v.  Sealy 

Harkins,  Tracy  v. 

Harkins.  Stuart  v. 

Harkness,  Commonwealth  v. 

Harris,  Emerick  v. 

Harris  v.  Fortune 

Harris  v.  Hayes 

Hartman  v.  Weiser 

Hartzell  v   Reiss 

Hartzell  v.  Brown's  heirs 

Hart,  Wakely  v. 


v     564 

Hassanclever  v.  Tucker 

ii     525 

iv     225 

Hassinger,  Schee  v. 

ii     325 

Havard  v.  Davis 

ii     406 

v     555 

Hawk  v.  Harman 

v      43 

v    336 

Hawn  v.  Norris 

iv       77 

ii     591 

Hay  den  v.  Adams 

ii     232 

iv     428 

Hayes  v.  Grier 

iv       80 

i       85 

Hayes,  Harris  v. 

vi     422 

iv       80 

Hazard  v.  Israel     - 

i     240 

i     172 

Hazard's  Lessee  v.  Lowry 

i     166 

iii     317 

Hazard  v.  Amringe 

iv     289 

iv     231 

Heacock,  Kerlin  v. 

iii     215 

v     465 

Heckert  v.  Haine 

vi       16 

vi     460 

Hecker  v.  Jarrett 

i     374 

i     573 

Heckerv.  Jarret 

iii    404 

Hefferfinger,  Lessee  of 

i    415 

Myers  v. 

iii     188 

,  v     555 

Heiser,  Hughes  v. 

i     463 

i     214 

Heller,  Lessee  of  Jones  v. 

iv       61 

i     349 

Henderson,  Lessee  of 

ii     294 

Cain  v.- 

ii     108 

ii     587 

Henderson,  Lessee  of 

iv     513 

Rickets  v.- 

vi     133 

Henderson,  Cooper  v. 

vi     189 

Henry  v.  Kennedy 

i     458 

vi       12 

Herring,  Clark  v. 

v       33 

vi       16 

Herty,  Boyer  v. 

v     381 

.  i     126 

Hertzog  v.  Ellis 

iii     209 

ii     507 

Hertzog,  Mussina  v. 

v     387 

i     572 

Hewes,  Ins.  Co.  Penn.  v. 

v     508 

i     461 

Heydrick  v.  Eaton 

ii     215 

Heyl,  Girard  v. 

vi     253 

ii     387 

Heyl  v.  Mitchell 

iv       oj 

flicks,  Pemberton's  Les- 

vi      45 

see  v. 

i         1 

ii     511 

Hilliard  v.  Greenleaf 

v     336 

vi     405 

Mill's  Lessee  v.  West 

i     486 

i     395 

Moar  v.  Mulvey 

i     145 

iii     321 

Hodgson's  Lessee  v.  Shearer 

i     535 

iv     194 

Hoffman,  Snyder's  Lessee  v. 

i       43 

i     416 

Wolliday,  Lessee  of  Drin- 

i    125 

ker  v. 

iii     181 

vi     422 

iolloway,  Pigott  v. 

i     436 

i     253 

iolloway,  Commonwealth  v. 

v     512 

i     289 

lolloway,  Commonwealth  v. 

v     516 

v     138 

Jolloway,  Commonwealth  v. 

vi     213 

vi     316 

lolme  v.  Karsper 

v     469 

524 


GENERAL  TABLE  OF  CASES. 


Holmes  v.  Lessee  of  Holmes 

v 

253 

Jackson  v.  The  Common- 

Homer, Wenberg  v. 

vi 

307 

wealth 

ii 

79 

Hope,  Barnet  v. 

v 

518 

Jameson,  Alexander  v. 

v 

238 

Horton,  Warder  v. 

iv 

529 

James,  Biddis  v. 

vi 

321 

Howell,  Wharf  v. 

v 

499 

Jarret,  Heckerv. 

i 

374 

Huber,  Shearick  v. 

vi 

2 

Jarrett,  Hecker  v. 

iii 

404 

Hubley's  Lessee  v.  Chew 

iv 

59 

Jenks'  Lessee  v.  Backhouse 

i 

91 

Hudson,  Binns  v. 

v 

505 

Jennings  v.  Cox 

i 

588 

Hughes,  Coates  v. 

iii 

498 

Jennings  v.  Ins.  Co.  Penn. 

iv 

244 

Hughes  v.  Heiser 

i 

463 

Johns,  Wilson  v. 

ii 

209 

Hull,  Hantz  v. 

ii 

511 

Johns,  Blythe  v. 

v 

247 

Hunter,  Moore  v. 

iii 

475 

Johnston's  Executors, 

Hurst's  Lessee  v.  Kirkbride 

i 

616 

Boyles  v. 

vi 

125 

Hurst  v.  Hurst 

iii 

347 

Johnson  v.  Chaffant 

i 

75 

Hutcheson  v.  Johnson 

i 

59 

Johnson,  The  Common- 

Hyde, Longenecker  v. 

vi 

1 

wealth  v. 

ii 

275 

Johnson,  Hutcheson  v. 

i 

59 

I 

Johnson,  Lessee  of  Elaine  v. 

iii 

103 

Ilgenfritz  v.  Douglass 

vi 

402 

Johnson,  Ozeas  v. 

i 

191 

Immel,  Commonwealth  v. 

vi 

403 

Johnson  v.  Tait 

vi 

121 

Ingersoll,  Woods  v. 

i 

146 

Johnston,  Thompson  v. 

vi 

68 

Ins.  Co.  N.  A.,  Callender  v. 

v 

425 

Jones  v.  Badger 

v 

461 

Ins.  Co.  t/V.  A.,  Gourdon  v. 

i 

430 

Junes,  Diffedorffer  v. 

v 

289 

Ins.  Co.  N.  A.,  Griffith  v. 

v 

465 

Jones,  Lessee  of,  v.  Heller 

iv 

61 

Jones  v. 

i 

38 

Jones  v.  Ins.  Co.  N.  A. 

i 

38 

v.  Jones 

ii 

547 

Jones,  Ins.  Co.  N.  A.  v. 

ii 

547 

Kohne  v. 

vi 

219 

Jones  v.  Moore 

v 

573 

Rousset  v. 

i 

429 

Jordan  v.  Meredith 

i 

27 

Schwartz  v. 

vi 

378  'Judges  of  Common  Pleas, 

Watson  v. 

i 

47 

Commonwealth  v. 

iii 

273 

Ins.  Co.  Penn.,  Calhoun  v. 

i 

293 

Dempsey  v. 

i 

300 

K 

v.  Hewes 

v 

508 

Jennings  v. 

iv 

244  Kap,  Newman  v. 

v. 

78 

v.  Ketland 

i 

499  Karr,  Lessee,  of  Nesbitt  v. 

iii 

181 

Ins.  Co.  Philad.,  Gibson  v. 

i 

405  Karsper,  Holme  v. 

v 

469 

Ireland,  Lessee  of  Moody  v. 
Irish  v.  The  Commonwealth 

iv 
iii 

31  Kearney  v.  M'Cullough 
91  Keefer,  Lessee  of  Davis  v. 

v 

iv 

389 
161 

Irish  v.  Scovil 

vi 

55  Keeley,  Berthon  v. 

i 

502 

Irvine  v.  Campbell 

vi 

Hg  Keiffer,  Duncan  v. 

iii 

126 

Irwin,  Lessee  of  Larrimer  v 

iv 

104  Keister,  San  tee  v. 

vi 

36 

w 

Israel.  Clark  v. 

vi 

391  Kelly  v.  Foster 

ii 

4 

Israel,  Hazard  v. 

i 

240  Kelly,  Guier  v. 

ii 

294 

Israel,  Scott  v. 

ii 

145  Kennedy,  Gordon  v. 

ii 

287 

Kennedy  v.  Gregory 

i 

85 

J 

Kennedy,  Henry  v. 

i 

458 

Jack  v.  Bales 

iii 

101  '  Kennedy  v.  Lowry 

i 

393 

Jack  v.  Shoemaker 

iii 

280  1  Kenton,  a  lunatic,  case  of 

v 

613 

GENERAL  TABLE  OF  CASES. 


525 


Keppele,  Lang  v. 
Kerlin  v.  Heacock 
Ketland,  Ins.  Co.  Penn.  v. 
Ketland  v.  Medford 
Keyser,  Priestman  v. 
Kidd,  Lessee,  of  Campbell  v. 
Kimmel,  Solomon  v. 
Kintner,  Messinger  v. 
Kintzer,  Shaeffer  v. 
Kirk  v.  Dean 

Kirkbride,  Hurst's  Lessee  v. 
Kline  v.  Grayson 
Knox  v.  Work 
Kohne  v.  Ins.  Co.  N.  A. 
Korbman,  Cecil's  Lessee  v. 
Kramer  v.  The  Common- 
wealth 

Kreitzer,  Shaeffer  v. 
Krug,  Ebersoll  v. 
Krug,  Ebersoll  v. 
Krug,  Ebersoll  v. 
Kyle's  Lessee  v.  White 
Kyle,  Lessee  of,  White  v. 


Lacombe  v.  Wain 

Laidley,  Cresoe  v. 

Lamberton,  Brown  v. 

Lamberton,  Sanderson  v. 

Lane  v.  Schreiner 

Langv.  Keppele 

Lapsley  v.  Pleasants 

Latimer  v.  Ridge 

Laughlin,  Lessee  of  Daw- 
son  v. 

Lawman,  Lessee  of,  v. 
Thomas 

Lawrence  ex  parte 

Leather  v.  Poultney 

Lessee  of  Adams,  Magee- 
han  v. 

Lessee  of  Armstrong  v. 
•Morgan 

Lessee  of  Biddle  v.  Dougall    ii 
Biddle  v.  Dougall 
Billington  v.  Welsh  v 


i 

123 

Lessee  of  Blaine  v.  Johnson   iii 

103 

iii 

215 

Bond  v.  Stroup        iii 

66 

i 

499 

Bond  v.  Fitzran- 

i 

497 

dolph                      v 

£14 

iv 

344 

Bonnet  v.  Deve- 

iii 

186 

baugh         -           iii 

175 

v 

232 

Brown,  Cosby  v.       ii 

124 

iv 

97 

Buchanan  v.  Ma- 

i 

537 

clure                        i 

385 

ii 

341 

Burkart  v.  Bucher    ii 

455 

i 

616 

Cain  v.  Henderson   ii 

108 

iv 

225 

Campbell  v.  Kidd    iii 

186 

ii 

582 

Cecil  v.  Korbman     i 

134 

vi 

219 

Cherry  v.  liubinson  iii 

189 

i 

134 

C  luggage  v.  Swan    iv 

150 

Correy  v.  C  ax  ton      iv 

140 

iii 

577 

Cox  v.  Cromwell     iii 

114 

vi 

430 

Dansdale,  Burd  v.    ii 

80 

iii 

528 

Davis  v.  Keeier        iv 

161 

iii 

555 

Dawson  v.  Bigsby     v 

204 

v 

51 

Daivsonv  Laughlinv 

214 

i 

246 

Delancey,  Little  v.   v 

266 

v 

162 

Dilworth  v.  Sinder- 

ling                         i 

488 

Dinkle  v.  Mar- 

shall        -            iii 

587 

iv 

299 

Drinker  v.  Holli- 

ii 

279 

day                         iii 

181 

ii 

34 

Duncan  v.  Curry      iii 

14 

vi 

129 

Dunlop  v.  Speer       iii 

169 

i 

292 

Dunning  v.  Caro- 

i 

123 

thers,                     iii 

110 

iv 

502 

Eddy,  Faulkner  v.     i 

188 

i 

458 

Evans  v.  Nargong     ii 

55 

Fehl  v.  Good              ii 

495 

v 

214 

Findlay  v.  Riddle    iii 

139 

Frazer  v.  Hallo- 

iv 

54 

well          -              i 

126 

v 

304 

Galloway  v.  Ogle      ii 

468 

iv 

352 

Gardiner  v.  Schuyl- 

kill  Bridge  Co.      ii 

450 

ii 

109 

German  v.  Gabbald  iii 

302 

Grant,  Caines  v.        v 

119 

iii 

181 

Gratz  v.  Ewalt          ii 

95 

ii 

37 

Gratz,  Campbell  v.  vi 

115 

v 

142 

Hall  v.  Vandegrift  iii 

374 

v 

129 

Hamilton  v.  Mars- 

den           -             vi 

45 

526 


GENERAL  TABLE  OF  CASES. 


Lessee  of  Hauer  v.  Scheetz  ii 
Hazard  v.  Lowry  i 
Heister  v.  Fortner  ii 
Henry  v.  Morgan  ii 
Hill  v.  West  i 

Hodgson  v.  Sherer  i 
Holmes,  Holmes  v.  v 
Hoover  v.  Schrei- 

der  iii 

Howard  v.  Pollock  iii 
Hurst  v.  R'irkbride  i 
Huston  v.  Hamilton  ii 
Jackson  v.  Burns  iii 
James  v.  Betz  ii 

Jenks  v.  Backhouse  i 
Jones,  Heller  v.  iv 
Keeble  v.  Arthurs  iii 
Kyle  v.  White  i 

Kyle,  White  v.  v 
Larrimcr,  Irtain  v.  iv 
Lawman  v.  Thomas  iv 
Lazarus  v.  Brvson  iii 
Maclay  v.  Work  v 
M't.lemmons  v. 

Graham  -  iii 
M'Intire  v.  Ward  v 
M'Kenzie  v.  Crow  ii 
M'Knight  v.  Ying- 

land  ii 

M'Rhea  v.  Plummer  i 
Magens  v.  Smith  iv 
Mathers  v.  Ake- 

wright  ii 

Mayor,  Aldermen,  &c. 
v.  Schuylkill  Bridge 
Co.  -  iv 

Miles  T.  Potter  ii 
Mitchell  v.  Mitch- 
ell ir 
Mitchell  v.  Ritchell  iii 
Moody  v.  Ireland  iv 
Moody  v.  Vandyke  iv 
Moore,  Gordon  v.  v 
Murray  v.  Galbraith  ii 
Myers  v.  Heffer- 

finger  iii 

Neffv.  Neff  i 


532i|  Lessee  of  JVesbitt  v.  Karr        iii 
166'  Patterson  v.  Coch- 

40  ran 


497 
486 
535 
253 


188 

189 

616 

387 

75 

12 

91 

61 

26 

246 

162 

104 

51 

54 

154 

88 
296 
105 

61 

227 
73 


283 
65 

180 

110 

31 

31 

136 

59 


Pemberton  v.  Hicks 
Plumstead,  Sproul 


v. 


Rickets  v.  Hender- 

son vi 

Roberts  v.  Seattle      i 
Rogers  v.  Gibson      ii 
Ross  v.  Cutshall        i 
Simon  v.  Brown          ii 
Simpson  v.  Am- 

mons  i 

Simpson,  Drum  v.  vi 
Small,  Wright  v.  ii 
Small,  Wright  v.  v 
Smith  v.  Brown  iii 
Smith  v.  Fol  well  i 
Snyder  v.  Hoffman  i 
Snyder  v.  Snyder  vi 
Sprenkel  v.  Steven- 

son  iii 

Steele  v.  Findlay  iii 
Steinmetz  v.  Young  ii 
Stephens  v.  Bear  iii 
Stewart,  Richard- 

son v.        -  iv 

Sweitzer  v.  Meese  vi 
Sylerv.  Eckart  i 
Watson  v.  Bailey  i 
Watson,  Bailey  v.  vi 
"Whitman,  Stoe- 

ver  v.        -  vi 

Willis  v.  Bucher       ii 
Wirt  v.  Stevenson  iii 
Zebach  v.  Smith 
Levy  v.  Bank  U.  S. 
Lewis,  Commonwealth  v. 


188 
350 


Lewis  v.  England 

Line,  Waggoner  v. 

Lippincott  v.  Barker 

Lisle,  Champneys  v. 

Litle  v.  Toland 

Little  v.  Lessee  of  Delancey   v 

Livezey  v.  Gorgas         -  i 

Livezey  v.  Gorgas  -      ii 


HI 
i 

vi 
iv 
iii 
ii 
i 
vi 


181 

231 
1 

189 

133 

440 
46 

399 
44 

175 

478 
93 
204 
187 
546 
43 
483 

188 
181 
520 
31 

198 
500 
378 
470 
450 

416 
455 

35 

69 

27 
266 
5 

589 
174 
327 

83 
266 
251 
192 


GENERAL  TABLE  OF  CASES. 


527 


Lloyd,  Lock  v.                        v    375 

Maclure,  Buchanan's  Les- 

Lock v.  Lloyd                          v    375 

see  v.                                      i    385 

Long,  Commonwealth  v.          v    489 

Mageehan  v.  Lessee  of 

Longenecker  v.  Hyde             vi 
Lower  Dublin  School  v. 

Adams                                  ii     109 
Magen's  Lessee  v.  Smith         iv       73 

Paul                                       i       59 

Mann  v.  Albert!                       ii     195 

Low  v.  Davy                     -      v     595 

Mannhardt  v.  Soderstrom        i     138 

Lowry,  Hazard's  Lessee  v.      i     166 

Mariam,  Godshall  v.                  i     352 

Lowry,  Kennedy  v.                   i     393 

Markle,  Blackburn  v.              vi     174 

Lyle  v.  Barker,  Sheriff            v     457 

Marsden,  Lessee  of  Hamil- 

Lyle v.  Ducomb                         v     585 

ton  v.                            -        vi       45 

Lyle,  D'Arcy  v.                 -      v     441 

Marshall,  Davis  v.                    v     382 

Lyon  v.  M'Manus      -            iv     167 

Marshall,  Lessee  of  Din- 

kle  v.                                     iii     58f 

M 

Marshall,  M'Allister  v.           vi     338 

Martin  v.  Smith         -               v       16 

jyl'Alla,  M'Kinley  v.       -        v     600 

Martin,  Smith  v.               -      vi     262 

M'Allister,  Greeves  v.              ii     591 

Massey  v.  Thomas                   vi     333 

M'Allister  v.  Marshall             vi     338 

Masteller  v.  Trembly              vi       33 

M'Call,  Bank  N.  A.  v.             iii     338 

Mayor's  Lessee  v.  Schuylkill 

M'Call,  Bank  N.  A.  v.            iv     371 

Bridge  Co.                            iv     283 

M'Call,  Crousillat  v.         -        v     433 

Meade  v.  M'Dowell                 v     195 

M'Clenachan  v.  Curwen        vi     509 

Mease,  Wallis  v.                     iii     546 

M'Clurg  v.  Ross                       v     218 

Meason,  ex  parte                     v     167 

M'Corkle  v.  Binns                    v     340 

Medford,  Ketland  v.                i    497 

M'Cullough  -v.Grubb                   i     573 

Meeker,  Gregg  v.         -           iv    428 

M'Cullough  v.  Guetner            i     214 

Meese,  Lessee  of  Sweit* 

M'Cullough,  Kearney  v.           v     389 

zer  v.                                     vi     500 

M'Cullough,  Miles  v.                i      77 

Meredith,  Commonwealth  v.   v    432 

M'Cullough  v.  Young                i       63 

Meredith,  Jordan  v.                  i       27 

M'Dowell  v.  Burd                    vi     198 

Messinger,  Commonwealth  v.  i     273 

M'Dowell,  Meade  v.                 v     195 

Messinger  v.  Kintaer              iv       97 

M'Faden,  Guier  v.                    ii     587 

Meyer  v.  Barker                      vi     228 

M'Ginnis,  Webster  v.              v     235 

Miles  v.  M'Cullough                 i       77 

M'llhenny,  French  v.               ii       13 

Miles  v.  O'Hara                      iv     108 

M'Intire,  Lessee  of,  v.  Ward  v     296 

Miles  v.  Wister                 -       v     477 

M'Kean  v.  Shannon                   i     370 

Miller  v.  Miller                       iii       39 

M'Kee  v.  Straub                       ii         1 

Miller  v.  Miller                 -        v       62 

M'Kinley  v.  M'Calla        -      v     600 

Miller  v.  Ord                             ii     382 

M'Kissom  v.  Steel                    iv       16 

Milne  v.  Davis                          ii     137 

M'Knight,  Vickroy  v.              iv     204 

Milne  v.  Moreton                     vi     353 

M'Laughlin  v.  Scot                   i       61 

Miner  v.  Tagert                      iii     204 

M'Manus,  Lyon  v.                   iv     167 

Mitchell  v.  Cowgill                 iv       29 

M'Millan  v.  Birch                      i     178 

Mitchell,  Heyl  v.                     iv       89 

M'Rhea's  Lessee  v.  Plummet  i     £27 

Mitchell's  Lessee  v.  Mitchell  iv    180 

Mackie  v.  Pleasants                 ii     36£ 

Mitchell  v.  Smith                       i     110 

Maclay,  Lessee  of,  v.  Work    v     154 

Montgomery  v.  U.  S.  Ins.  Co.  iv     445 

528 


GENERAL  TABLE  OF  CASES. 


Moody's  Lessee  v.  Ireland 

Moore  v.  Bickham's  Lessee 

Moore,  Lessee  of,  v.  Gordon  v 

JHoore  v.  Hunter 

Moore,  Jones  v. 

Moore,  Studebacker  v. 

Moore  v.  Wait 

Mooreheadj  Dtjcon's  Les- 
see v.          - 

Morgan,  Armstrong's  Les- 
see v. 

Morgan,  Henry's  Lessee  v. 

Morgan  v.  Stell 

Morris  v.  Duane 

Morris  v.  Thomas 

Morrison  v.  Semple 

Moreton,  Milne  r. 

Mott,  Dungan  v. 

Mott,  Neilson  v. 

Mott,  Passmore  v. 

Moulson  v.  Rees 

Mulvey,  Hoar  v. 

Murray,  Commonwealth  v. 

Murray,  Thurston  v. 

Murray,  Thurston  v. 

Murray  v.  Williamson 

Murray  v.  Wilson 

Mussina  v.  Hertzogr 

O 

Myers  v.  Urich 

N 

Nargong,  The  Lessee  of 

Evans  v. 

Neff's  Lessee  v.  Neff 
Neilson  v.  Mott 
Newton  Road,  Case  of 
Nichols,  Obermyer  v. 
Norris,  Hawn  v. 
North,  Commonwealth  v. 
North  v.  Phoenix  Ins.  Co. 
Norton,  Witman  v. 
Nourse,  Walsh  v. 
Numan  v.  Kap 

O 

Obermyer  v.  Nichols 
0' 'Daniel,  Gitier  v. 


iv 

31 

iv 

1 

v 

13 

iii 

475 

v 

573 

iii 

124 

i 

219 

iv 

59 

iii 

181 

ii 

497 

v 

305 

i 

90 

v 

77 

vi 

94 

vi 

353 

ii 

201 

ii 

301 

ii 

201 

vi 

32 

i 

145 

iv 

487 

iii 

326 

iii 

413 

iii 

135 

i 

531 

v 

387 

i 

25 

ii 

55 

i 

350 

ii 

301 

v 

612 

vi 

159 

iv 

77 

i 

97 

iii 

457 

vi 

395 

v 

381 

v 

73 

vi 

159 

i 

349 

Odenwalder,  Frederitze  v.  iv  15 
Ogle,  ex  parte  v  518 
Ogle,  Galloway's  Lessee  v.  ii  468 
Ogle,  Griffith  v.  i  172 
O'Hara,  Miles  v.  iv  108 
Ord,  Miller  v.  ii  382 
Overington,  ex  parte  v  317 
Overseers  of  Forks  v.  Over- 
seers of  Catawessa  iii  22 
Overseers  of  Reading  v. 

Overseers  of  Cumree  v  81 

Owen  v.  Shelhammer  iii  45 

Ozeas  v.  Johnson  i  191 

P 

Packer  v.  Spangler 

Parke,  Pemberton  v. 

Pascalis,  Commonwealth  v. 

Passmore  v.  Mott 

Patterson,  Clark  v. 

Patterson's  Lessee  v. 
Cochran 

Paul,  Lower  Dublin  School  v. 

Paul  v.  Vankirk 

Pearce  v.  Affleck 

Pearce  v.  Shaw 

Pemberton's  Lessee  v.  Micks 

Pemberton  v.  Parke 

Penns.  Ins.  Co.,  Jennings  v. 

Penrose  v.  Griffith 

Perit,  Dusar  v. 

Perlasca  v.  Spargella 

Peterson  v.  Barry 

Petry  v.  Beauvarlet 

Philad.  Ins.  Co.,  Cranston  v. 

Philanthropic  Society,  Com- 
monwealth v.  v    486 

Phillips  v.  Bonsall  ii     138 

Phillips,  Gratz  v.  i     588 

Phillips,  Gratz  v.  iii    474 

Phillips,  Gratz  v.  v    564 

Phoenix  Ins.  Co.,  Brown  v.  iv  445 
Ferguson  v.  v  544 
North  v.  iii  457 
Y.  Pratt  ii  308 
Snowden  v.  iii  457 
Steele  v.  iii  306 


ii 

60 

v 

601 

i 

37 

ii 

201 

vi 

128 

i 

231 

•.  i 

59 

vi 

128 

iv 

344 

iv 

485 

5  i 

1 

v 

601 

iv 

244 

iv 

231 

iv 

361 

iii 

427 

iv 

481 

i 

97 

v 

538 

GENERAL  TABLE  OF  CASES. 


529 


Pigott  v.  Holloway 

Pleasants,  Lapsley  v. 

Pleasants,  Mackie  v. 

Pleasants,  Savage  v. 

Plummer,  M'Rhea's  Les- 
see v. 

Plumsted's  Lessee,  Sproul  v. 

Pollock,  Howard's  Lessee  v. 

Porter,  Smith  v. 

Potter,  Miles's  Lessee  v. 

Poultney,  Leather  v. 

Pratt,  Phoenix  Ins.  Co.  v. 

Presbyterian  Congregation 
of  Cedar  Spring,  Cauf- 
man  v. 

Preston  v.  Englert 

Priestman  v.  Keyser 

Profit,  Commonwealth  v. 


Quigley,  Shortz  v. 
R 

Radnor  Road,  Case  of 
Ralston  v.  Union  Ins.  Co. 
Ramsay,  Scott  v. 
Randolph,  Barry  v. 
Rankin,  Cooper  r. 
Read  v.  Bush 
Reading  v.  Cumree 
Reed,  French  v. 
Rees,  Moulson  v. 
Reichart  v.  Castator 
Reinholdt  v.  Alberty 
Beiley,  Wray  v. 
Reinouldt  v.  Aublai 
Reiss,  Hartzell  v. 
Reynolds,  Garrigues  v. 
Richardson  v.  Stewart's 

Lessee 

Riddle,  Findlay's  Lessee  v. 
Ridge,  Latimer  v. 
Ridgely  v.  Spencer 
Ridgway,  Can  by  v. 
Ritchell,  MitcheWs  Lessee  t\ 
3  X 


i  436! 

iv  502 ' 

ii  363 

V  403 

i  227 

iv  189 

iii  189 

i  209 

ii  65 


iv     352 
ii     308 


vi  59 

v  390 

iv  344 

iv  424 


i     222 


v 

iv 
i 

iii 
v 
v 
v 

vi 

vi 
v 
i 
v 

iv 
i 

vi 

iv 

iii 

i 

ii 

i 

iii 


Richter  v.  Chamberlin  vi      34 

Rickett's,  Lessee  of,  v.  Hen- 
derson vi  133 
Roberts'  Lessee  v.  Beattie  i  440 
Robinson,  Cherry's  Lessee  v.  iii  1 89 
Ross's  Lessee  v.  Cutshall  i  399 
Ross,  Commissioners  of 

Berks  v.  iii     520 

Ross,  Commissioners  of 

Berks  v.  iii     539 

Ross  v.  Evans  iii       50 

Ross,  M'Clurg  v.  v    218 

Rosseter,  Commonwealth  v.  ii      360 
Rousset  v.  Ins.  Co.  N.  A.         i 
Rowley  v.  Brown  i 

Rugan  v.  West  -       i 

Ruhlman  v.  Commonwealth    v 
Rundle  v.  Etwein, 
Russel  v.  Skipwith 
Ruston  v.  Dunwoody's  Ad- 
ministrators 


612 
386 
221 
277 
613 
455 

81 
308 

32 
109 
469 
381 
369 
289 


198 


458 

70 

496 

110 


429 

i  61 

i  267 

v  24 

vi  136 

vi  241 

i  42 


Sailer,  Zerger  v. 

St.  Patrick  Benev.  Society, 
Commonwealth  v. 

Salmon  v.  Davis 

Salomon,  Fitzsimons  v. 

Sanderson,  Clark  v. 

Sanderson  v.  Lamberton 

Santee  v.  Keister 

Sansom,  Canal  Company  v. 

Savage  v.  Pleasants 

Scheaffer,  Brown  v. 

Schee  v.  Hassinger 

Schreider,  Hoover's  Les- 
see v.  iii     188 

Schreiner,  Lane  v.  i     292 

Schuylkill  Bridge  Co.,  Gar- 
diner's Lessee  v.  ii    450 

Schuylkill  Bridge  Co., 

Mayor's  Lessee  v.         -      iv    283 

Schuylkill  Falls  Road,  Case 

of  ii     250 

Schwartz  v.  Ins.  Co.  N.  A.     vi     378 

Scott  v.  Israel         -  ii     145 


vi  24 

ii  441 

iv  375 

ii  436 

iii  192 

vi  129 

vi  36 

i  70 

v  403 

vi  177 

ii  325 


530 


GENERAL  TABLE  OF  CASES. 


Scot,  M'Laughlin.  v. 

Scott  v.  Ramsay 

Scott,  Galbraiitfs  Lessee  v. 

Scovil,  Irish  v. 

Sealy,  Hantz  v. 

Searle,  Commonwealth  v. 

Semple,  Morrison  v. 

Shaeffer  v.  Kreitzer 

Shaffer  v.  Kintzer 

Shaffer  v.  Sutton 

Shall er  v.  Brand 

Shamoken  Road,  Case  of 

Shannon,  M'Kean  v. 

Sharif,  Commonwealth  v. 

Shaw,  Pearce  v. 

Shearick  v.  Huber 

Sheeler  v.  Speer 

Sheetz,  Hauer's  Lessee  v. 

Shelhamer,  Owen  v. 

Shepherd,  Commonwealth  v. 

Sherer  v.  Hodgson 

Shippen,  Baring  v. 

Shoemaker,  Jack  v. 

Shoemaker  v.  Smith 

Shortz  v.  Quigley 

Silvas,  Bogg's  Lessee  v. 

Simmons  v.  Commonwealth 

Simpson's  Lessee  v.  Am- 
mons 

Simpson's  Lessee,  Drum  v. 

Sims  v.  Gurney 

Siuderling,  Dilworth's  Les- 
see v. 

Skipwith,  Russel  v. 

Small,  Wright's  Lessee  v. 

Smith's  Lessee  v.  Folwell 

Smith,  Bantleon  v. 

Smith,  Baxter  v. 

Smith  v.  Brown 

Smith,  Commonwealth  v. 

Smith  v.  Diehl 

Smith,  Duffield  v. 

Smith,  Evans  v. 

Smith  v.  Evans 

Smith,  Magens's  Lessee  v. 

Smith,  Martin  v. 

Smith  v.  Martin 


i 

63 

i 

221 

iv 

335 

vi 

55 

vi 

405 

ii 

332 

vi 

94 

vi 

430 

i 

537 

v 

228 

vi 

435 

vi 

36 

i 

370 

ii 

514 

iv 

485 

vi 

2 

iii 

130 

ii 

532 

iii 

45 

vi 

283 

i 

535 

ii 

154 

iii 

280 

ii 

239 

i 

222 

iv 

59 

v 

617 

i 

175 

vi 

478 

iv 

513 

i 

488 

vi 

241 

v 

204 

i 

546 

ii 

146 

vi 

427 

iii 

201 

iv 

117 

ii 

145 

vi 

302 

iv 

366 

vi 

102 

iv 

73 

v 

16 

vi 

262 

i 

110 

i 

209 

ii 

239 

v 

355 

iii 

69 

iii 

239 

iv 

370 

vi 

135 

iii 

457 

ii 

216 

i 

381 

i 

43 

vi 

483 

i 

138 

v 

232 

Smith,  Mitchell  v. 

Smith  v.  Porter 

Smith,  Shoemaker  v. 

Smith,  Stoddart  v. 

Smith,  Zebach's  Lessee  v. 

Snell  v.  Foussat 

Snelling,  Commonwealth  v.  iv 

Snider,  Colhoun  v. 

Snowden  v.  Phcenix  Ins.  Co.  iii 

Snyder  v.  Castor 

Snyder,  Drum  v. 

Snyder's  Lessee  v.  Hoffman 

Snyder's  Lessee  v.  Snyder 

Soderstrom,  Mannhardt  v. 

Solomon  v.  Kimmel, 

Sp afford  v.  Gallagher's 
Executors, 

Spangler  v.  Commonwealth 

Spangler,  Packer  v. 

Spargella,  Perlasca  v. 

Sparhawk  v.  Broome 

Sparks  v.  Garrigues 

Spear's  Road,  Case  of 

Speer,  Dunlop's  Lessee  v. 

Speer,  Sheeler  v. 

Spencer,  Campbell  v. 

Spencer,  Ridgely  v. 

Sprenger,  Commonwealth  v. 

Sproul  v.  Plumsted's  Lessee  iv 

Steele  v.  Phcenix  Ins.  Co. 

Steel,  M'R'issom  v. 

Stell,  Morgan  v. 

Sterrett  v.  Bull 

Sterrett  v.  Bull 

SprenkeVs  Lessee  v. 

Stevenson  iii 

Stevenson,  Wirt's  Lessee  v.  iii 

Stewart  v.  Foster  ii 

Stewart,  Richardson's  Les- 
see v.  iv 

Stewart,  Wells  v.  v 

Stewart's  J&xrs.,  Wooter- 
ing  -v.  i 

Stockman  v.  Blair  v 

Stoddart  v.  Smith  v 

Stoever  v.  Whitman's  Les- 
see       -  vi    416 


i 

590 

iii 

533 

ii 

60 

iii 

427 

vi 

256 

i 

152 

iv 

174 

iii 

169 

iii 

130 

ii 

129 

ii 

70 

v 

353 

iv 

189 

iii 

306 

iv 

16 

v 

305 

i 

234 

i 

238 

188 

35 

110 

198 

325 

221 
211 
355 


GENERAL  TABLE  OF  CASES. 


531 


Straub  M'Kee  v.     "  -  ii  1 

Stroup,  Bond's  Lessee  v.  iii  66 

Stuart  v.  Harkins               -  iii  321 

Studebacker  v.  Moore  iii  124 

Stultz,  v.  Dickey          -  v  285 

Sulger  v.  Dennis  ii  428 

Summerl  v.  Elder  i  106 

Sutton,  Shaffer  v.  v  228 

Swan,  Cluggage's  Lessee  v.  iv  150 

Sweitzer's  Lessee  v.  Meese  vi  500 

Swoop,   Oean  v.  ii  72 

Syler's  Lessee  v.  Eckart  i  378 


Tagert,  Miner  v. 
Taggart  v.  Cooper 
Taggart,  Toner  v. 
Tait,  Johnston  v. 
Taylor,  Common\vealth  v. 
Taylor,  Young  v. 
Teackle,  Boggs  v. 
Tees,  Ewing  v. 
Thomas,  Adams  v. 
Thomas,  Lawman's  Les- 
see v. 

Thomas,  Massey  v. 
Thomas,  Morris  v. 
Thompson  v.  Johnston 
Thurston  v.  Murray 
Thurston  v.  Murray 
Tiffin  v.  Tiffin 
Toland,  Litle  v. 
Toner  v.  Taggart 
Tracy  v.  Harkins 
Trimbly,  Mastellcr  v. 
Tucker,  Hassanclever  v. 
Tucker,  Wells  v. 
Tunis,  Frazer  v. 
Turnbull  v.  Commonwealth 
Turner,  Cookson  v. 
Turner,  Cookson  v. 
Turner,  Waddington  v. 

U 


Union  Tns.  Co.,  Armroyd  v.    ii     394 
Union  Ins.  Co.,  Armroyd  v.  .iii    437 


iii 

204 

iii 

34 

v 

490 

vi 

121 

v 

277 

ii 

218 

v 

332 

i 

450 

vi 

254 

iv 

51 

vi 

333 

v 

77 

vi 

68 

iii 

326 

iii 

413 

ii 

202 

vi 

83 

v 

490 

i 

395 

vi 

33 

ii 

525 

iii 

366 

i 

254 

i 

45 

ii 

453 

iii 

416 

iii 

416! 

Union  Ins.  Co.,  Ralston  v.  iv 
Union  Ins.  Co.,  Wilcocks  v.  ii 
United  States  v.  Vaughan  iii 
United  States  Ins.  Co.,  Mont- 
gomery v.  iv 
Uriel),  Myers  v.  -  i 


Van  Ainringe,  Hazard  v.  iv 
Vanatta  v.  Anderson  -  iii 
Vandegrift,  Hall's  Lessee  v.  iii 
Vandyke,  Moody's  Lessee  v.  iv 
Vangordon  v.  Vangordon  iii 
Vanhorne,  Browne  v.  -  \ 
Vankirk,  Paul  v.  vi 

Van  1  ear  v.  Vanlear  -       i 

Vanlenr  v.  Vanlear  i 

Vansant  v.  Boileau  i 

Vaughan,  United  States  v.     iii 
Vickroy  v.  M'Knight  iv 


W 

Waddington  v.  Turner 
Waggoner  v.  Line 
Wait,  Moore  v. 
Wakely  v.  Hart 
Wallace  v.  Baker 
Wallis  v.  Mease 
Wain,  Lacombe  v. 
Wain  v.  IVilkins 
Walsh  v.  Nourse 
Ward,  GUchritt  i: 
Ward,  M'Intire's  Lessee  v, 
Warder  v.  Horton 
Watson's  Lessee  v.  Bailey 
Watson  v.  Ins.  Co.  N.  A. 
j  Webb  v.  Evans 
Webster  v.  M'Ginnis 
Weiser,  Hartman  v. 
Weishaupt  v.  Brehman 
Wells,  Berryhill  v. 
Wells  v.  Stewart 
Wells  v.  Tucker 
Welsh,  Billington's  Les- 
see v. 
Welsh  v.  Dusar 


in 

iii 

i 

vi 
i 

iii 

iv 

iii 

v 

i 

v 

iv 

i 

i 

i 

v 

i 

v 

V 
V 

iii 

v 

iii 


386 
574 
394 

445 


289 
417 
374 

31 
506 
334 
123 

76 
447 
444 
394 
204 


416 
589 
219 
316 
610 
546 
299 
110 
381 

41 
296 
529 
470- 

47 
565 
235 
253 
115 

56 
325 
366 

129 


532 


GENERAL  TABLE  OF  CASES. 


Wenberg  v.  Homer 
Werdman  v.  Felraly 
Werfel  v.  Commonwealth 
West,  Hill's  Lessee  v. 
West,  Rugan  v. 
Wharf  v.  Howell 
White  v.  Commonwealth 
White  v.  Commonwealth 
White,  Kyle's  Lessee  v. 
White  v.  Kyle's  Lessee 
Whitman's  Lessee,  Stoe- 

ver  v.          - 

Widdifield  v.  Widdifield 
Wilcocks,  Fox  v. 
Wil cocks  v.  Union  Ins.  Co. 
Wilkins  v.  Burr, 
Wilkins,  Wain  v. 
Williamson,  Murray  v. 
Willing,  Griffith  v. 
Wilson  v.  John 
Wilson,  Murray  v. 
Wilson  v.  Wilson 
Wilt  v.  Franklin 
Wister;  Miles  v. 
Witman  v.  Norton 
Woglam  v.  Burnes 


vi 

307 

Wolbert,  Commonwealth  v. 

vi 

292 

v» 

39 

Wood,  Commonwealth  v. 

iii 

414 

v 

65 

Woods  v.  Ingersoll 

i 

146 

i 

486 

Wood,  Ebert  v. 

i 

216 

i 

263 

Woolering  v.  Stewart's  Exr».  i 

221 

v 

499 

Work,  Knox  v. 

ii 

582 

iv 

418 

Work,  Maclay's  Lessee  v. 

v 

154 

vi 

179 

Wray  v.  Reiley 

v 

381 

i 

246 

Wright  v.  Small's  Lessee 

ii 

93 

v 

162 

Wright  v.  Small's  Lessee 

v 

204 

vi 

416 

Y 

ii 

245 

i 

194 

Yeat,  Clark  v. 

iv 

185 

ii 

574 

Yingland,  M'Knight's  Les- 

vi 

389 

see  v. 

ii 

61 

iii 

110 

Yohe  v.  Barnet 

i 

358 

iii 

135 

Young  v.  Commonwealth 

iv 

113 

iii 

317 

Young  v.  Commonwealth 

vi 

88 

ii 

209 

Young,  M'Cullough  v. 

i 

63 

i 

531 

Young,  Steinmetz's  Lessee  v 

.  ii 

520 

iii 

557 

Young  v.  Taylor 

ii 

218 

i 

502 

v 

477 

Z 

vi 

395 

i 

109 

Zerger  v.  Sailer 

vi 

24 

GENERAL  INDEX 


TO  THE 


PRINCIPAL  MATTERS  IN  THESE  REPORTS. 


ABANDONMENT. 

See  INSURANCE,  1.  19,  20.  29.  31. 
APPLICATION,  9. 
IMPROVEMENT,  5. 

An  abandonment  of  land  by  a  person  who 
has  paid  part  of  the  purchase  money,  or 
the  surveying  fees,  is  never  to  be  pre- 
sumed. Lessee  of  Davis  v.  Keefer,  iv.  165 

ABATEMENT. 
See  PARTITION,  2. 

ACCEPTANCE. 
See  WARRANT  AND  SURVEY,  23,  24. 

ACCOUNT. 

See  ORPHANS'  COURT,  3. 
<>ht.  Whether  when  goods  are  delivered  to 
an  agent  to  sell  and  remit,  the  law  raises 
a  promise  by  implication  to  account,  so 
that  an  action  on  the  case  will  lie  for  not 
rendering  an  account,  although  no  ex- 
press promise  was  made.  Schee  v.  Has- 


stnger, 


ii.  325 


ACCOUNT  RENDER. 

1.  Joint  partners  in  a  mercantile  adventure 
may  have   account   render  against   each 
other   by  the  common  law  ;  tenants  in 
common,  by  the  27th  section  of  4  Ann.  c. 
16,  which  section  has  been  adopted  in 
Pennsylvania.     Griffith  v.  Willing  et  al., 

iii.  317 

2.  Exceptions  to  the  report  of  auditors  in 
account  render,  are  too  late  afterajudg- 
ment  nisi  upon  the  report   has  become 
absolute  by  the  expiration  of  the  term 
in  which  it  was  entered.    $>u.   Whether 
such  exceptions  ought  not  to  be  taken 
before  the  auditors,  and  prior  to  any  re- 
port. Gratx  v.  Phillips,  iii.  474 

3.  In  account  render,  the  course  of  the  ac- 
tion is  to  take  issues  before  the  auditors, 
upon  all  matters  in  discharge  of  the  ac- 


count, alleged  by  one  party,  and  denied 
by  the  other,  which  issues  are  certified 
to  the  Court  by  the  auditors,  and  accord- 
ingly as  they  are  of  law  or  fact,  are  de- 
cided by  court  or  jury.  The  auditors  then 
regulate  their  account  by  the  result,  and 
report  it  to  the  Court.  Exceptions  taken 
to  an  account  reported  by  auditors,  after 
the  same  has  been  returned,  are  irregu- 
lar, and  of  no  effect.  Crousillat  v.Jll'Call, 

v.433 

4.  In  actions  sounding  merely  in  damages, 
the  rule  is  that  the  plaintiff  cannot  reco- 
ver more  than  the  damages  laid  in  the 
declaration;  but  this  rule  is  not  applicable 
to  account  render,  in  which  the  main  ob- 
ject of  the  action  is  to  obtain  an  account, 
and  judgment  for  the  arrearages,  and  in 
which  damages  are  given  only  ratione  in- 
terplacitationis.  A  plaintiff  in  account  ren- 
der may  therefore  have  judgment  for  the 
arrearages  to  a  greater  amount  than  the 
damages  laid  in  the  declaration.  Gratz  v. 
Phillips,  v,  564 

ACKNOWLEDGMENT. 
See  BARON  AND  FEME  ;  3.  5.  8,  9.  11. 
NOTICE,  1,2. 

1.  Where  a  deed  has  been  acknowledged 
before  a  magistrate  appointed  by  law  to 
take  and  certify  the  acknowledgment,  in 
order  that  the  deed  may  be  recorded, 
the  parties  have  no  right  lo  make  the 
most  trifling  alteration  in  it.    Moore  v. 
The  Lessee  of  Bickham,  iv.  1 

2.  It  being  the  intention  of  the  act  of  6th 
April  1802,  to  prohibit  the  recording  of 
any  deed  for  land  under  the    Connecticut 
title,  (with  the  exception  of  land  within 
the  townships,  submitted  under  the  act 
of  1799)  the  acknowledgment  of  a  deed 
for  land   both  within    and  without  the 
townships  is  wholly  void,  and  cannot  be 
given  in  evidence,  even  as  to  the  land 
within  the  townships.  Irish  v.  Scovill, 

vi.  55 


534 


GENERAL  INDEX. 


ACTION. 
See  BOND,  1. 

AMICABLE  ACTION. 

1.  Letters  of  administration  granted  under 
seal  in  a  sister  state,  are  a  sufficient  au- 
thority to  maintain  an  action  in  this  state. 
M'Cullough  v.  Young,  i.  63 

2.  In  order  to  reach  the  estate  of  a  deceased 
partner,  an  action  for  a  partnership  debt 
lies  against  his  executor,  if  the  surviving 
partner  be  a  certificated  bankrupt  before 
action  brought.  Lang  v.  Keppele,      \.  123 

3.  One  partner  cannot  maintain  assumpsit 
against  the  other  for  the  proceeds  of  a 
partnership  adventure,  unless  they  have 
settled  their  accounts  and  struck  a  ba- 
lance. Ozeas  v.  Johnson,  i.  191 

4.  To  support  an  action  on  the  case  for  da- 
mage occasioned  by  a  common  nuisance, 
it  is  not  necessary  that  the  damage  sus- 
tained was  immediate;  it  is  sufficient  if  it 
was  consequential.  Hughes  v.  Heiser,  i.  463 

5.  The  prothonotary  of  a  Court  cannot  main- 
tain an  action  for  the  recovery  of  his  fees 
in  a  cause  which  is  still  pending.  Lyon  v. 
Macmanits,  iv.  167 

6.  The  house  of  Jl  and  B  at  Madeira,  ship- 
ped two  pipes  of  wine  to  Philadelphia, 
for  account  and  risque  of  S,  to  whom  a 
bill  of  lading  was  sent.  The  wine  did  not 
arrive  until  after  the  death  of  S,  when 
his  executors  declined  taking  it,  and  re- 
quested C,  who  was  concerned  in  the 
Madeira  house,  to  keep  it  till  it  was  paid 
for.  It  remained  in  the  cellar  of  C  until 
after  his  death.  It  was  then  delivered  by 
the  agent  of  the  executors  of  C  to  the 
wife  of  S,  upon  her  alleging  that  it  was 
her  property,  and  that  C  had  kept  it  in  bis 
cellar  for  her  use.  The  wife  of  S  sold  the 
wine,  and  received  the  price,  field,  that 
the  executors  of  C  could  not  maintain  an 
action  against  the  wife  of  S,  for  the  pro- 
ceeds of  the  wine.  Wells  v.  Stewart,  v.  325 

7.  A  agreed  with  B  a  common  carrier,  for 
the  carriage  of  certain  goods.  B  without 
the  direction  of  A,  agreed  with  C  another 
carrier  for  the  carriage  of  the  same  goods; 
and  C  without  the  knowledge  or  direc- 
tion of  A,  agreed  with  D  a  third  carrier. 
D  lost  them.    Held,  that  A  might  main- 
tain suit  against  D,  and  that  by  bringing 
his  action  he  affirmed  the  contract  made 
with  him  by  C,  and  could  not  after  that 
recover  from  B  or  C.  Sanderson  v.  Lam- 
berton.  vi.  129 

ACT  OF   ASSEMBLY. 

When  an  act  of  assembly  makes  innovations 
on  established  rules,  its  positive  institu- 


tions must  be  precisely  pursued.  Young  v. 
The  Commonwealth,  iv.  116 

ACT  OF  FRAUDS. 

See  FRAUDS  AND  PERJURIES. 

The  act  of  frauds  and  perjuries  of  the  state 
of  Pennsylvania  does  not  prevent  d  de- 
claration of  trust  from  being  made  by 
parol.  Hence  in  an  ejectment  by  the  de- 
visees of  A  against  B,  it  is  competent  to 
give  parol  evidence  of  the  declarations 
of  Jl,  that  the  land  she  had  purchased  in 
her  own  name,  was  bought  for  the  use 
of  B,  with  money  in  which  her  husband 
had  given  her  only  a  life  estate,  and  had 
devised  it  to  B  after  her  death.  Lessee  of 
German  v.  Gabbald,  iii.  302 

fc 

ACTUAL.  SETTLEMENT. 
See  IMPROVEMENT. 

1.  Two  years  after  the  pacification  by  Ge- 
neral Wayne's  treaty  with  the  Indians,  is 
a  reasonable  time  for  making  a  settle, 
ment  which  has  been  prevented  by  the 
enemy.  Lessee  of  Hazard  v.  Lowry,  i.  166 

2.  The  proviso  in  the  9th  section  of  the  act 
of  3d  April  1792,  which  excuses  a  settle- 
ment in  case  of  prevention  by  the  enemy, 
also  excuses  a  survey.  ib. 

3.  The  want  of  an  actual  settlement  within 
two  years  from  the  pacification  with  the 
Indians,  cannot  be  set  up  against  the  t?tle 
of  a  warrantee  under  the  act  of  3d  April 
1792,  by  a  person  who  has  taken  wrong- 
ful possession  of  the  land,  and  before  the 
expiration  of  the  two  years  has  refused 
to  deliver  it  up  to  the  warrantee.  A  bare 
refusal  is  enough  to  estop  the  possessor, 
without  the  threat  or  use  of  actual  force. 
Lessee  of  Patterson  v.  Cochran,  i.  231 

4.  When  an  actual  settler,  who  has  made 
some  improvements,  has  been  deterred 
by  the  violence  of  a  younger  settler  from 
completing  his  settlement,  and  has  for. 
several  years  neglected  to  take  steps  for 
the  recovery  of  his  possession,  it  is  a  fact 
for  the  jury  to  decide  whether  he  has 
not  relinquished  his  settlement.  He  does 
not  stand  in  the  situation  of  a  person  hav- 
ing a  legal  title,  who  may  bring  eject- 
ment  at    any  time    within    twenty-one 
years.  Cosby  v.  The  Lessee  of  Brown,  ii.  124 

5.  An  actual   settler    cannot    support   an 
ejectment  without  a  survey.  ib. 

6.  Jl  made  application  to  the  secretary  of 
the  land  office  for  a  tract  of  land  particu- 
larly described,  lying  north  and  west  of 
the  Ohio  &c.    On  the  3d  of  April  1792,  a 
warrant  issued,  which  by  mistake  of  the 


GENERAL  INDEX. 


535 


office  was  filled  up  with  lands  lying  else- 
where. On  the  10th  of  April  1792  the 
warrant  was  delivered  to  the  deputy  sur- 
veyor of  the  district,  who,  perceiving  the 
mistake,  did  not  enter  the  warrant  in  his 
book  according  to  its  description,  but  ac- 
cording to  the  description  in  the  appli- 
cation, and  surveyed  it  on  the  29th  of 
Jlugust  following.  Prior  to  the  survey,  hut 
subsequent  to  the  10th  of  Jlpril,  B  made 
a  bona  fide  actual  settlement  upon  the 
same  land.  Held,  that  the  entry  made  by 
the  deputy  surveyor,  had  no  effect  against 
third  persons,  and  that  B  was  entitled  to 
recover.  Lessee  of  Daivson  v.  Bigsby,  \. 

204 

7.  An  actual  settler  cannot  maintain  an 
ejectment  for  his  improvement  without 
an  official  survey,  or  a  private  one,  if  by 
due  exertion  he  was  unable  to  obtain  the 
former.  Stockman  v.  Blair,  v.  211 

ADMINISTRATOR. 

See  DEBTS. 

JUDGMENT,  2 . 

1.  Letters  of  administration  granted  under 
seal  in  a  sister  state,  are  a  sufficient  au- 
thority to  maintain  an  action  in  this  state. 
M'Ciit'lough  v.  Toung,  i.  63 

2.  An  administrator  is  chargeable  with  in- 
terest, where  he  has  been  guilty  of  ne- 
glect in  not  putting  out  the  money  of  the 
intestate,  or  lias  used  it  himself;    and  it 
lies  upon  him  to  shew  what  has  been 
done  with  it.     But  he  is  not  liable  for  in- 
terest until  after  twelve  months  from  the 
intestate's  death.  Fox  v.  Wilcocks,   i.  194 

3.  Judgments  obtained  before  a  justice  of 
the  peace,   when   filed  in  the  common 
pleas  or  made  known  to  the  administra- 
tors, must  be  paid  by  ihempro  ruta  with 
judgments  in  courts  of  record.     Scott  v. 

Ramsay,  i.  221 

4.  Where  there  is  a  naked  power  to  execu- 
tors to  sell,  and  they  renounce,  adminis- 
trators cum  testamento  annexo,  have  not, 
either  at  common  law,  or  under  any  act 
of  assembly  prior  to  that  of  the    12th 
March  1800,  authority  to  sell,  though  the 
object  of  a  sale  be  the  payment  of  debts. 
Lessee  of  Moodij  v.  Vandyke,  iv.  31 

5.  Administrators,  who  for  their  own  inte- 
rest, contest  the  claim  of  persons  assert- 
ing thf  mselves  to  be  heirs  to  the  intes- 
tate, are  not  ir.titled  incase  of  failure,  to 
charge  the  expenses  of  the  suit  to  the 
intestate's  estate.    It  scums  otherwise,  if 
the  defence  is  made  from  a  sense  of  duty 
as  trustees.  Hartzctlv.  Brown's  hei>'s,v.  138 

6.  Since  the  act  of  1794,  an  administrator 
has   no  right  to    retain  his  whole  debt 


against  creditors  in  equal  degree,  when 
there  is  a  deficiency  of  assets.  Ex  pane 
Meason,  v.  167 

AFFIDAVIT  RULE. 

1.  Under  the  general  power  of  the  Com- 
mon Pleas  to  regulate  its  practice,  it  has 
authority  to  make  a  rule,  requiring  of 
defendants  an  affidavit  of  defence,  and 
authorizing  a  judgment,  if  it  is  not  filed 
within  a  certain  time.    Vanatta  v.  Ander- 
son, iii.  417 

2.  Where  there  has  been  an  award  of  arbi- 
trators, finding  that  the  plaintiff  has  no 
cause  of  action,  an  affidavit  of  defence  is 
not  required.  Gregg  v.  Meeker,       iv.  428 

3.  The  rule  for  affidavits  of  defence  does 
not  apply  to  a  case  in  which  the  defen- 
dant is  an  infant.    Read  v.  Bush,     v.  455 

AGENT. 

See  FRAUDS  AND  PERJURIES,  3. 
INSURANCE,  10. 
AGREEMENT,  6. 

1.  If  an  agent  indebted  to   his  principal, 
ships  property  to  him  on  board  a  vessel 
belonging  to  a  third  person,  (although 
bound  to  conform  to  the  agent's  orders) 
and  the  captain  signs  a  bill  of  lading  de- 
liverable to  the  principal,  the  property 
thereupon  vests  in  the  principal,  and  the 
agent  cannot  countermand  or  disturb  the 
shipment.   Summer! i  v.  Elder,  i.  106 

2.  The  secretary  of  an  incorporated  com- 
pany, who  as  such  signs  a  lottery  ticket 
for  the  company,  is  not  personally  res- 
ponsible to  the  holder.  Passmore  v.  Mott, 

ii.  201 

3.  The  supercargo  of  all  the  shipments  but 
one  on  board  a  vessel,  and  having  also 
the  management  of  the   vessel,  joined 
with  the  captain  in  putting  in  a  claim  for 
the  ship  and  entire  cargo,  on  their  being 
captured  and  libelled  as  prize ;  and  upoii 
the  acquittal  of  that  particular  adventure, 
he  received  it  subject  to  the  payment  of 
all  the  costs,  expenses,  and  counsel  fees, 
arising  from  the  capture  and  trial,  which 
he  disbursed  out  of  t!ie  proceeds.    Held, 
that  lie  was  intitled  to  an  allowance  of 
those  costs  &c. ,  although  the  owner  was 
in  law  chargeable  only  with   a  part  of 
them.  Delaware  Insitrar.ee  Company  v.  De- 
launie,  iii.  295 

4.  A  deviation  from  orders  excused  by  an 
event  not  contemplated  at  the  time  the 
orders  were  given.  Dusarv.  Perit,  iv.361 

5.  A  and  B  his  wife,  on  the  12th  of  Dccem- 
lier  1797,  by  letter  of  attorney  authorized 
C  and  D  jointly  and  severally  to  make 


536 


GENERAL  INDEX. 


leases  of  a  large  estate  belonging-  to  the 
•wife  in  the  neighbourhood  of  Philadel- 
phia. This  power  was  recorded  on  the 
15th  of  September  1799,  and  C  acted  se- 
parately under  it,  making  various  leases 
for  99  years,  and  receiving  the  rents.  On 
the  30th  of  November  1801,  Jl  and  B 
executed  another  power  to  the  same 
effect,  to  C,  D,  and  E,  or  any  two  of 
them  jointly,  but  not  severally.  This  power 
was  known  to  C  on  or  before  the  5th  of 
May  1802  ;  D  declined  acting,  and  E 
accepted  the  power  merely  to  prevent  C 
from  acting  alone  ;  but  the  power  was 
never  recorded,  nor  any  public  notice 
given  of  it,  nor  was  any  lease  or  convey, 
ance  ever  made  under  it.  C  resided  on 
the  estate  as  usual,  collecting  the  rents, 
and  making  leases  as  formerly  ;  and  on 
the  9th  of  June  1802,  he  leased  the  pre- 
mises in  the  ejectment,  to  the  defendant, 
for  ninety-nine  years,  reserving  a  fair 
rent  at  the  time.  Held,  that  as  between 
the  principals  and  their  attorney  C,  the 
second  power  was  a  revocation  of  the 
first ;  but  the  defendant  being  a  ba/nafide 
purchaser  without  notice,  and  the  prin- 
cipals being  guilty  of  great  negligence 
in  taking  no  steps  to  give  notice  of  a 
revocation,  when  the  first  power  was  so 
notorious,  it  was  not  to  be  considered  a 
revocation  as  to  him,  and  therefore  he 
•was  intitled  to  hold  the  land.  Morgan  v. 
Stell,  v.  305 

6.  Damages  incurred  by  an  agent,  without 
his  own  fault,  in  the  management  of  the 
principal's  affairs,  or  in  consequence  of 
such  management,  must  be  borne  by  the 
principal.    Hence,  where  Jl,  the  agent  of 
B,  recovered  certain  of  B's  goods  in  Cafe 
Francois,  by  the  decree  of  a  competent 
court  there,  (the  same  having  been  at- 
tached by  C  for  the  debt  of  D  and  Co. 
in  whose  hands  they  were,  and  claimed 
in  court  by  A)  and  then  sold  them  and 
remitted  the  proceeds  to  B  ;  and  was 
afterwards  in  a  suit  instituted  by  C,  and 
connected  with  the  first  proceeding,  com- 
pelled by  the  threats  of  the  president 
Cftrittofhe,  to  confess,  contrary  to    the 
truth,  that  at  the  time  of  receiving  the 
goods,  he  promised  to  pay  C  a  sum  of 
money  on  account  of  2)  and  Co.,  and  to 
let  judgment  go  against  him,  it  was  held, 
that  A  might  recover  from  B  his  princi- 
pal the  amount  thus  paid,  it  not  exceed- 
ing the  estimated  value  of  B's  goods. 
IfArcy  v.  Lyle,  v.  441 

7.  It  seems  that   an  attorney    who  is  not 
authorized  by  writing  under  seal,  cannot 
execute  a  deed  of  release 'under  seal,' in 
the  name  of  hif  principal ;  but  if  he  does 
execute  such  a  deed,  though  it  cannot 


be  given  in  evidertce  against  tlie  princi- 
pal under  the  issue  of  nan  ettfactum,  yet 
it  may  be  under  the  issue  of  non  assump- 
»it  as  amounting  to  an  agreement  not  to 
sue.  Cooper  v.  Rankin,  v.  613 

8.  A  charter  party  was  entered  into  by  B, 
acting  on  behalf  of  the  owners  of  the 
ship,  almost  all  the  covenants  in  which 
were  expressed  to  be  made  by  him  as 
agent  for  the  owners  ;  but  the  owners 
were  not  parties,  nor  were  they  named  in 
any  part  of  the  instrument.    At  the  con- 
clusion the  charter  party  said,  "  for  the 
"performance  of  all  the  covenants  before 
"  mentioned,  the  said  parties  respectively 
"  bind  themselves  personally  each  to  the 
"  other."  The  vessel,  her  tackle,  and  ap- 
parel, were  bound  for  the  due  performance 
of  her  owners  mid  agents  or  agent  to  the 
charterer,  and  her  freight  was  made  pay- 
able to  the  agent  or  his  order.  Held,  that 
the  agent  was  personally  responsible  for 
his  covenants.   Meyer  v.  Barker,    vi.  228 

9.  If  a  person,  who  is  u.ndti  no  obligation 
to  execute  an  order  of  insurance,  never- 
theless undertakes  it,  and  executes  it 
defectively,  he  is  answerable  for  the  loss. 
French  v.  Reed,  vi.  308 

10.  If  the  general  agent  of  ship  and  cargo, 
covers  enemy  property  on  board,  the 
warranty  of  neutrality  in  a  policy  on  the 
ship,  is  violated.  Schwartz  v.  Ins.  Co.  AT.  A., 

vi.  378 

AGREEMENT. 

See  AMENDMENT,  1. 

FRAUDS  AND  PERJURIES,  3. 
ARTICLES  OF  AGREEMENT. 
LANDLORD  AND  TENANT,  6. 
SALE,  6. 

1.  If  a  forged  check  is  credited  as  cash  in 
the  holder's  bank  book,  and  afterwards 
under  a  mistake  of  his  rights,  he  agrees 
that  if  the  check  is  really  a  forgery,  it  is 
no  deposit,  he  is  not  bound  by  the  agree- 
ment.   Levy  v.  The  Bank  of  the  United 
States,  i.  27 

2.  A  contract  for  the  purchase  and  sale  of 
lands  in  Pennsylvania  under  the  Connecti- 
cut title,  is  unlawful  and  void,  although 
the  act  of  April  llth  1795,  neither  ex- 
pressly  says  so,  nor  contains  any  clause 
prohibitory  of  the  contract,  but  merely 
inflicts  a  penalty  on  the  offender.  MitcJiell 
v.  Smith,  i.  110 

3.  An  agreement  by  a  surety  to  forbear  a 
suit  against  his  principal,  after  he  shall 
have  paid  the  principals  debt,  is  a  good  con- 
sideration to  support  a  promise,  although 
at  the  time  of  the  agreement  the  surety 
had  no  cause  of  action  against  the  prin- 
cipal. Hamaker  \.  Eberley,  ii.  506 


GENERAL  INDEX. 


537 


4.  An  express  agreement  prevents  the  im- 
plication of  a  promise   which  the  law 
would  otherwise  make.  Duncan  v.  Keif- 
fer,  iii.  126 

5.  The  court  will  take  notice  of  an  agree- 
ment to  stay  execution,  although  it  be 
not  entered  of  record,  so  as  to  supersede 
the  necessity  of  a  scire  facias  post  annum 
et  diem.  Lessee  of  Dunlop  v.  Speer,  iii.  169 

6.  Jl  went  as  supercargo  from  Philadelphia 
to  Batavia,  under  an  agreement,  which 
so  far   as  respected  his  compensation, 
was  thus  :  "  The  commission  which  is  to 
"  be  4  per  cent,  on  the  investment,  is  also 
"to  be  paid  in  Batavia,  and  invested  on 
" account  of  A"  Jl  died  thirty-six  hours 
after  his  arrival  in  Batavia,  without  hav- 
ing made  any  investment  of  the  cargo. 
Held  that  he  was  intitled  to  a  proportion- 
ate compensation,   deducting  from   the 
whole  commission  of  4  per  cent.,  what  it 
would  cost  the  shippers  to  complete  the 
investment  at  Batavia.  We.lsh  v.  Dusar, 

iii.  329 

7.  The  agreement  between  shippers,  owner 
and  supercargo,  after  stating  the  propor- 
tions of  the  shippers,  and  the   object  of 
the  shipment,    proceeded  thus:    "The 

'  freight,  which  is  to  be  25  per  cent.,  on 
'  the  sum  shipped,  is  to  be  paid  in  Bata- 
1  via,  and  invested  in  the  said  ship  on 
'account  of  If  the  owner.  "  The  com- 
'  mission  which  is  to  he  4  per  cent.  r,n 
'  the  investment  is  also  to  be  paid  in  Jia- 
'  tavia,  and  invested  on  account  of  »-2" 
the  supercargo  ;  "but  after  the  property  of 
"  the  shippers  is  all  on  board."  Held  that 
neither  Jl  nor  D  was  intitled  to  a  prefer- 
ence in  the  loading  of-  their  goods  on 
board  the  ship,  and  the  ship  being  nearly 
full  with  the  goods  of  the  shippers,  A 
and  D  must  load  in  proportion  to  their 
interests.  iii.  329 

8.  Where  a  party  has  agreed  to  enter  into 
an  amicable  action  for  the  trial  of  a  cer- 
tain question,  the  Court  will  direct  the 
action  to  be  entered,  even  against  the 
party's  will.  Bond  v.  Gardiner,         iv.  269 

9.  A  brought  a  suit  against  B,  and  then 
entered  into  an  arrangement  with  him, 
by  which  it  was  agreed  that  the   suit 
should  be  discontinued,  and  an  amicable 
action  against  K  be  brought  to  the  same 
term.     C  thereupon  covenanted  with  A, 
that  if  he  should   recover  any  sum  of 
money  in  the  amicable  action  intended 
to  be  brought  against  B,  in  pursuance  of 
the  agreement,  B  should  pay  the  amount 
on  demand,  C  binding  himself  and  his 
heirs  to  A  for  the  payment.     B  was  de- 
clared a  bankrupt,  and  obtained  his  cer- 
tificate. A  applied  to  the  Court  for  leave 

VOL.  VI.  3  Y 


to  discontinue  the  first  action,  and  to 
enter  an  amicable  action,  which  was 
granted  against  the  consent  of  B,  who 
nevertheless  appeared,  and  pleaded  his 
certificate.  The  Court  struck  oflf'the  plea, 
upon  ~l's  agreeing  not  to  take  out  execu- 
tion against  B  upon  any  judgment  lie 
might  recover  in  that  suit.  They  also  re- 
fused to  receive  evidence  of  the  certifi- 
cate upon  the  trial,  and  judgment  was 
finally  entered  against  B.  7/e/Jthat  C  was 
answerable  under  his  agreement,  not- 
withstanding the  certificate  of  B,  and 
the  entry  of  the  action  against  his  con- 
sent, and  the  agreement  not  to  take  out 
execution  against  him.  The  proceedings 
in  the  suit  between  jl  and  B  cannot,  be 
examined  in  the  suit  between  A  and  C, 
but  must  be  presumed  correct,  until  the 
judgment  against  B  be  reversed.  But  if 
examinable,the  entry  of  the  action  against 
Ji's  consent,  the  striking  oft'  the  plea, 
and  the  refusal  of  the  evidence  under  the 
terms  agreed  to  by  Jl,  were  right,  iv.  269 

10.  Agreement  of  attorneys  in  the  Court 
below,  to  abide  by  the  opinion  of  a  pro- 
fessional gentleman,  upon  the  question 
whether     restitution    of    the    premises 
should  be  made  to  the  plaintiff  in  error 
from  whom  they  had  been  taken  by  a 
habtre  facias,  enforced  by  the  court  of 
error.  Cahillv.  Benn,  vi.   99 

11.  If  the  plaintiff  agrees  to  discontinue,  in 
consideration  that  the  defendant  will  not 
file  a  bill  against  him,  this  Court,  if  the 
defendant  performs  his  engagement,  will 
stay  proceedings  in  the  suit,  and  order 
an  exoneretur  of  the  bail.  Wilkins  v.  Burr, 

vi.  389 

ALIEN. 

1.  An  alien  who  has  resided  in  Pittsburgh 
one  year  next  p-eceding  an  election  for 
borough  officers,  and  has  wit!, in  that  time 
paid  a  borough  tax,  is  entitled  to  vo'e  at 
such  election.  Ste-cart  v.  Foster  and  others, 

ii,    110 

2.  The  argument  for  excluding  aliens  from 
the  privilege  of  voting  at  borough  elec- 
tions is  not  so  forcible  in  Pennsylvania  as 
it  would  be  in   England,  because   Penn- 
sylvania, both  under  the  proprietary  go- 
vernment, and  since  her  independence, 
has   held  out  encouragement  to  aliens, 
unknown  to  the  principles  of  the  common 
law.  ii.  118 

3.  A  British  antenatus  is  incapable  of  taking 
lands  by  descent  within  the  state  of  Penn- 
sylvania. Lessee  of  Jackson  v.  Burns,  iii.  75 

ALIEN  ENEMY. 
See  PLEADING,  20. 


538 


GENERAL  INDEX. 


ALIMONY. 

1.  An  order  of  alimony  upon  a  divorce  a 
inensa  et  thoro,  continues  in  force  only 
until  the  reconciliation  of  the  parties.  If 
therefore  the  wife  return*  at  the  solici- 
tation of  the  husband,  and  cohabits  with 
hirn  but  for  five  weeks,  and  then  leaves 
him   without  just  cause,  she  loses  her 
right  to  alimony.  Tiffin  v.  Tiffin,     ii.  202 

2.  Qu<ere,  whether  the  court  would  revive 
the  order,  and  compel  the  payment  of 
arrears,  if  after  such  a  reconciliation  the 
wife  waif  turned  out  of  doors  by  the  hus- 
band, or  compelled  by  his  treatment  to 
withdraw.  ib. 

ALLEGIANCE. 

The  English  doctrine,  that  no  man  can, 
even  for  the  most  pressing  reasons,  de- 
vest  himself  of  the  allegiance  under 
which  he  was  born,  is  not  compatible 
with  the  constitution  of  Pennsylvania,  or 
her  sister  states.  Lessee  of  Jackson  v.  Burns, 

iii.  85 

ALLOCATUR. 

See  ERROR,  24. 


ALLOWANCE  FOR  ROADS. 

See  ROADS,  10. 

AMENDMENT. 

1.  If  there  is  an  agreement  by  attorneys  be- 
low to  amend,  amendment  may  be  made 
after  error  brought,  and  without  costs. 
Johnson  v.  Chaffant,  i.  75 

2.  A  habeas  corpus  to  remove  a  cause  from 
the  Common  Pleas  to  the  Supreme  Court 
may  be  amended  by  the  praecipe;  and  may 
after  verdict  be  sent  back  to  the  Com- 
mon Pleas  for  the  purpose  of  having  the 
return  amended  by  that  court.  Benner  v 
Prey,  i.  366 

3.  Amendments  are  reducible  to  no  certain 
rule.  Each  particular  case  must  be  left 
to  the  sound  discretion  of  the  court.  But 
the  best  principle  seems  to  be,  that  an 
amendment  shall  or  shall  not  be  permit- 
ted, as  it  will  best  tend  to  the  further- 
ance of  justice.  i.  369 

4.  After  suit  brought  one  of  the  defendants 
dies,  and  judgment  is  entered  against 
both.  Error  is  brought  to  a  superior  court, 
where  the  writ  is  nonprossed ;  and  then 
upon  error  coram  vobis,  the  death  of  one 
of  the  defendants  before  judgment,  as- 
signed. Amendment  permitted  by  enter- 
ing a  suggestion  of  the  death,  with  the 
same  effect  as  if  it  had  been  done  before 
judgment.  Lessee  of  Hill  v.  West,    i.  486 


5.*  A  count  charging  man  and  wife  upon  a 
joint  assumption  in  consideration  of  mo- 
ney had  and  received  by  them  for  the 
plaintiff's  use,  cannot  be  amended  under 
the  arbitration  law  of  21st  March  1806. 
Grosser  v.  Eckart,  i.  575 

6.  Amendment  of  a  declaration  in  account 
render  permitted,  by  adding  to  a  count 
which  charged  the  defendant's  testator 
as  bailiff  and  receiver  of  the  plaintiff,  a 
count  charging  him  as  bailiff  &c.  of  the 
plaintiff  as   surviving  partner  of  A.,   al- 
though the  writ  corresponded  with  the 
first  count.  Gralz  v.  Phillips,  i.  588 

7.  Under  the  act  of  2lst  Mar.  1806,  amend- 
ments in  matter  of  form  are  allowable 
after  the  jury  are  sworn.  Gordon  v.  Ken- 
nedy, ii.  291 

8.  Clerical  errors  are  amendable  as  well  in 
criminal  as  in  civil  cases.  Sharff  v.  T/ie 
Common-wealth,  ii.  514 

9.  Under  the  6th  section  of  the  act  of  21st 
of  March  1806,  the  damages  in  the  de- 
claration may  be  increased  on  the  trial 
of  the  cause.    Clark  v.  Herring,        v.   33 

10.  The  act  of  the  21st  March  1806,  does 
not  extend  so  far  as  to  authorize  the 
court  to  permit  a  declaration  to  be  with- 
drawn, and  one  for  a  different  cause  of 
action  to  be  substituted.     A  declaration 
in  malicious  prosecution  cannot  be  substi- 
tuted for  one  in  slander;  nor  can  a  decla- 
ration for  slander  of  husband  and  wife, 
be  withdrawn,  and  one  for  slander  of  the 
wife,  introduced;  although  the  writ  might 
justify  either.  Ebersoll  v.  Xrug,         v.  51 

11.  Motion  to  enlarge  the  term  in  eject- 
ment, in  order  to  support  an  execution, 
refused  after  the  lapse  of  several  years 
from  the  judgment,  and  from  the  expira- 
tion of  the  term,  and  after  a  new  party 
had  come  into  possession.     Campbell  v. 
lessee  of  Gratz,  vi.  115 

12.  An  omission  to  strike  out  the  name  of 
the  casual  ejector,  and  to  insert  that  of 
the  real  defendant,  may  be  amended  af- 
ter judgment;  and  if  the  real  defendant 
enters  into  the  common  rule,  proceeds  to 
trial,  and  appeals,  the  judgment  is  as 
conclusive  against  him,  as    if  the  issue 
had  been  corrected.    Bailey  v.  Fairplay, 

vi.  450 

AMICABLE  ACTION. 

1.  Where  a  party  has  agreed  to  enter  into 
an  amicable  action  for  the  trial  of  a  cer- 
tain question,  the  court  will  direct  the 
entry  of  the  action,  even  against  his  con- 
sent.    Bondv.  Gardiner,  iv.  269 

2.  An  amicable  action  of  ejectment  is  good, 
although  the  act  prescribes  the  form  of 


GENERAL  INDEX. 


539 


the  writ  of  ejectment,  and  says  it  shal 
not  be  otherwise.  Massey  v.  Thomas, 

vi.  333 
ANCIENT  DEED. 

See  RECITAL,  2. 

APPEAL. 

See  JUSTICE  OF  THE  PEACE,  5.  16. 
AUDITORS. 
DIVORCE. 

ARBITRATION,  1.  3.  7,  8. 10.  12. 
COSTS,  15. 

1.  The  record  of  the  proceedings  upon  an 
appeal  from  the  Circuit  Court,  which  by 
law  is  directed  to  be  filed  before  the  next 
term,  is  in  time,  if  filed  before  the  court 
meets  on  the  first  day  of  the  next  term 
Vanlear  v  Vanlear,  i.  76 

2.  The  proceedings  upon  an  appeal  from  a 
justice  of  the  peace,  are  not  de  novo  in 
the  Common  Pleas  ;  and  therefore  if  the 
justice  exceeds  his  jurisdiction,  judg 
ment  in  the  Common  Pleas  may  be  ar- 
rested. Moore  v.  Wait,  i.  219 

3.  An  appeal  does  not  lie  from  the  board  of 
property  to  the  Common  Pleas,  although 
an  act  of  assembly  directs  the  officers  of 
that  board  to  do  certain  things  in  case  of 
an  appeal.   Commonwealth  v.  Cochran, 

i.  324 

4.  On  an  appeal  from  a  decision  of  the  Cir- 
cuit Court,  the  Supreme  Court  is  in  the 
same  situation  with  the  judge  of  the  Cir- 
cuit Court,  and  may  make  the  same  or- 
ders that  he  could.  Kennedy  v.  Lo\vry, 

i".  393 

5.  The  proceedings  in  the  Common  Pleas, 
upon  an  appeal   from  a  justice  of  the 
peace,  are  de  novo  only  as  to  the  decla- 
ration, pleadings  and  evidence  ;  but  the 
cause  of  action  must  continue  the  same. 
And  if  it  appears  from  the  record  of  the 
Common  Pleas,  that  any  distinct  cause 
of  action  has  be<-n  blended  with  that  up- 
on which  the  justice  decided,  their  judg- 
ment will  be  erroneous.   Owen  v.  Shelha- 
iner,  iii.  45 

6.  An  appeal  does  not  lie  from  the  Common 
Pleas,  to  the  Supreme  Court.  The  act  of 
llih  March  1809,  which  authorizes  ap- 
peals and  writs  of  error  from  and  to  the 
courts  of  the    several  counties,    means 
that  causes  shall  be  removed  by  one  or 
the  other  mode,  according  to  the  course 
of  proceeding  in  the  respective  courts, 
namely  by  appeal   from  the  Register's 
and  Orphans'Courts,  and  by  writ  of  er- 
ror from  the  Quarter  Sessions  and  Com- 
mon Pleas.  Lessee  of  M'Lemmons  v.  Gra- 
ham, iii.  88 


7.  It  is  not  necessary  that  an  appeal  from 
the  judgment  of  a  justice  should  be  en- 
tered ont  he  prothonotary's  docket,  with- 
in twenty  days  after  the  judgment.  The 
appeal  must  be  made  within  that  time, 
but  the  entry  on  the  docket  is  in  time  on 
any  day  before  the  next  term  of  the  Com- 
mon Pleas.  Bcale  v.  Dougherty,       iii.  432 

8.  The  act  of  20th  March  1810,  which  di- 
rects that  the  defendant   who  appeals 
from   the  judgment  of  a  justice  of  the 
peace,  shall   be  bound  with  surety  in  the 
nature  of  special  bail,  is  satisfied  by  his 
finding  surety,  without  joining  in  the  re- 
cognizance. Cavence  v.  Butler,          vi.  52 

9.  If  special  bail  upon  an  appeal  to  the  Com- 
mon Pleas  by  the  defendant,  is  irregu- 
larly or  informally  taken,  and  after  the 
cause   is  in  court,  the  plaintiff  appears 
before  arbitrators  and  pleailr  his  cause, 
the  informality  of  bail  is  waived.       ibid. 

APPEARANCE. 
See  ERROR,  5. 

1.  If  an  attorney  enters  his  appearance  ge- 
nerally to  a  suit  against  two  defendants, 
one  of  whom  only  is  summoned,  it  is  a 
good  appearance  for  both.  JWCullough  v. 
Guetner,  i.  214 

2.  A  general  appearance  by  an  attorney,  en- 
tered opposite  the  names  of  two  defen- 
dants, is  a  good  appearance   for  both, 
although  one  has  not  been  summoned. 
Scott  v.  Israel.  ii.  145 

3.  The  decree  of  an  Orphans'  Court,  order- 
ing the  real  estate  of  an  intestate,  at  the 
valuation,  to  his  oldest  son,  is  not  -void,  as 
against  a  minor  child,  merely  because  the 
minor  did  not  appear  by  guardian.  No  act 
of  assembly  requires  such  appearance, 
and,  the  proceedings  not  being  in  the 
nature  of  an  adversary  suit  at  common 
law,  notice  to  the  minor,  or  to  those  hav- 
ing the  care  of  his  interests  is  sufficient. 
Elliot  v.  Elliot,  v.  1 

APPLICATION. 

1.  Between  two  applications  of  the  3d  April 
1769,  that  which  came  out  of  the  wheel 
first,  and  was  lowest  in  number,  has  the 
preference.  Lessee  of  Duncan  v.  Curry, 

iii.  14 

2.  It  is  a  matter  of  fact  for  the  jury  to  de- 
cide, which  of  two  applications  is  most 
descriptive  of  the  land  in  dispute,  or  whe- 
ther either  applies  to  it.  ib. 

3.  An  application  descriptive  of  the  land, 
is  to  be  preferred  to  one  not  descriptivs 
of  it,  though  such  descriptive  application 


540 


GENERAL  INDEX. 


Is  higher  in  number,  provided  due  dili- 
gence is  used  in  obtaining  a  survey.  Les- 
see of  Duncan  v.  Curry,  in.  14 

4.  If  the  holder  of  the  preferable  applica- 
tion does  not  put  it  into  the  surveyor's 
hands,  and  the  holder  of  the  inferior  ap- 
plication does,  the  surveyor  may  make 
the  survey  on  the  inferior  application  ; 
but  if  before  the  return  of  survey,  the 
holder  of  the  preferable  application  ac- 
counts for  his  delay,  the  surveyor  may 
and  ought  to  make  the  return  for  him.  ib. 

5.  After  a  return  made  in  favour  of  the 
holder  of  an  inferior  application,  the  hold- 
er of  the  application  originally  intitledto 
a  preference,  may  enter  a  caveat,  and 
try  his  case  before  the  board  of  proper- 
ty ;  who,  if  there  has  been  no  unreasona- 
ble  delay,   may    order  a  patent  to  the 
caveator  ;  and  in  case  either  party  is  dis- 
satisfied, he  may  bring  his  case  before  a 
court  of  law,   where  the   order  of  the 
board  of  property,  is  not  considered  as 
conclusive.  ib. 

6.  Applications  which  do  not  exclusively 
call  for  particular  spots  of  land,  are  not 
efficacious  to  give  a  title,  unless  they  are 
reduced  to  certainty  by  a  survey.    Later 
orders  of  survey,  duly  prosecuted,  though 
equally  undescriptive,  will  be  entitled  to 
a  preference  ovei  them.  iii.  20 

7.  A  shifted  application  is  not  a  commence- 
ment of  title  until  return  of  the  survey 
made  under  it,  except  as  against  a  per- 
son who  has  actual  notice  of  the  survey  ; 
and  although  the  proprietor  of  a  younger 
survey  may  have  actual  notice  of  the  sur- 
vey of  the  shifted  application,  yet  if  there 
is  laches  in  the  return  of  this  survey,  and 
in  the  mean  time  the  younger  survey  is 
sold  to  a  bonaf.de  purchaser,  without  ac- 
tual notice,  he  will  hold  the  land.  Lessee 
of  Bond  v.  Stroiip,  iii.  66 

8.  A  descriptive  location,   the  survey  on 
which  is  unreasonably  delayed,  loses  its 
preference  against  a  subsequent  warrant 
or  location  with  a  prior  survey, — against 
a  settlement  right  acquired  before  the 
survey  on  the  old  location, — and  against 
a   notorious  well  established  possession 
under  a  subsequent  descriptive  location. 
Lessee  of  Blaine  v.  Johnson,  iii.  103 

9.  The  owner  of  a  descriptive  application, 
who  lias  paid  the  surveyor's  fees,  and 
given  orders  to  him  to  survey  it  accord- 
ing to  its  description,  is  not  bound  by  a 
survey  in  another  place,  until  he  has  been 
informed  of  it,  and  has  acquiesced  in  it ; 
and  his  omission  to  look  after  the  sur- 
vey, willjjot,  under  such  circumstances, 

,    amount  to  an  abandonment  of  his  loca- 
tion, lessee  of  .Davis  v.  Jt'eefer,        iv.  161 


APPOINTMENT. 

If  county  commissioners  appoint  a  treasu- 
rer, not  with  the  free  exercise  of  their 
judgments,  but  by  drawingcuts  to  decide 
which  of  two  of  them  shall  give  up  his 
nomination  to  the  other,  the  appointment 
is  illegal,  and  the  commissioners  may 
make  another  appointment.  Common- 
wealth v.  County  Commissioners,  v.  534 

APPRENTICE. 
See  ENLISTMENT. 

The  master  of  an  apprentice  cannot  take 
him  out  of  the  state  where  the  inden- 
tures were  executed,  unless  the  inden- 
tures give  the  power,  or  it  follows  from 
the  nature  of  the  mystery  which  the  ap- 
prentice is  to  learn.  The  Commonwealth 
v.  Edwards,  vi.  202 

ARBITRATION. 

See  BAIL,  4. 
COURT,  5. 

1.  The  arbitration  law  of  29th  March  1809, 
embraces  actions  in  the  Supreme  Court ; 
but  an  appeal  from  the  award  of  arbitra- 
tors lies  only  to  the  Common  Pleas.  Car- 
pentier  v.  The  Delaware  Insurance  Compa- 
ny, ii.  264 

2.  After  a  cause  has  been  once  decided 
either  by  a  jury,  a  justice  of  the  peace, 
or  referees,  and  is  remaining  in  court  for 
a  decision  on  matter  of  law,  it  is  not  in 
the  power  of  either  party  to  submit  it  to 
arbitration  under  the  act  of  29th  March 
1809.  Mann  v.  Alberti,  ii.  195 

3.  If  the  defendants  in  an  arbitration  are  a 
body  corporate,  they  are  entitled  to  ap- 
peal  without  entering  into  a  recognis- 
ance of  bail.  ii!  264 

4.  A  judgment  against  three  defendants 
upon  a  submission  to  arbitration  by  one 
of  them  is  erroneous,  and  must  be  re- 
versed as  to  all.     Studebacker  v.  Moore, 

iii.  124 

5.  Immediately  after  special  bail  is  entered 
in  compliance  with  a  notice,  either  party 
is  entitled  to  enter  a  rule  of  arbitration, 
though  before  the  return  day  of  the  term 
of  which  the  suit  docketed.     And  in  all 
cases  a  suit  is  entered  within  the  meaning 
of  the  arbitration  law,  from  the  moment 
it  is  placed  on  the  docket  of  the  protho- 
notary.  Hertzog  v.  Ellis,  iii.  209 

6.  An  award  of  arbitrators  is  a  judgment  of 
that  court  in  which  it  is  entered,  from 
the   time  of  its  entry  upon  the  docket, 
and  as   sucli  subject  to  a  writ  of  error. 
Ebersoll  v.  Krug,  iii.  528 

7.  But  no  writ  of  error  can  be  sued  out  up- 
on the  award,  until  after  the  expiration 
of  the  time  allowed  for  an  appeal,  iii.  531 


GENERAL  INDEX. 


541 


8.  Filing  a  recognisance,  paying  costs,  and 
making  the  proper  affidavit,  do  of  them- 
selves constitute  an  appeal  from  the  a- 
\vard  of  arbitrators,  without  filing  an  or- 
der to  enter  the  appeal,  or  a  declaration 
that  the  party  does  appeal.  Jones  v.  Bad- 
ger, v.  461. 

9.  A  recognisance  in  which  the   defendant 
and  his  sureties  join,  is  good,  although 
the  act  requires  only  the  sureties  to  en- 
ter into  it.  ibid. 

10.  A  recognisance  of  bail,  to  ground  an 
appeal,  is  well  taken  before  the  commis- 
sioner of  bail,  though  the  act  directs  that 
the  surety  shall  enter  into  it  with  the 
prothonotary.  ibid. 

11.  The  rule  requiring  bail  to   justify   in 
open  court,  either  by  affidavit  taken  be- 
fore   the  commissioner,    or  one  of  the 
judges,  does  not  apply  to  bail  upon  an 
appeal.  An  affidavit  before  the  Commis- 
sioner, with  an  offer  to  the  opposite  party 
to  propose   any  questions  as  to  the  cir- 
cumstances ofthe  bail,  is  asufficient  jus- 
tification, ibid. 

12.  Under   the  arbitration   law  of  March 
1810,  executors  are  entitled  to  an  appeal 
•without   entering   into    a  recognisance, 
paying  costs,  or  making  an  affidavit.  Ins. 
Co.  Penns.  v.  Ilewes,  v.  508 

13.  A  second  rule  of  arbitration  cannot  be 
entered  without  consent  of  parties,  until 
the  first  is  discharged  by  order  of  the 
Court.  Barnet  v.  ffojje,  v.  518 

14.  If  a  rule  of  arbitration  misrecites  the 
date  ofthe  arbitration  law,  it  is  immate- 
rial. Moukon  v.  Rees,  vi.  32 

15.  If  a  plaintiff',  by  arbitrating  his  cause, 
and  getting  judgment,  before  the  entry 
of  special    bail,  dispenses   with  special 
bail,  the  defendant  cannot  assign  it  for 
error.  ib. 

10.  If  the  cause  of  action  appears  in  the 
award,  neither  statement  nor  declaration 
is  necessary.  ib. 

17.  If  the  defendant  in  ejectment  refers  the 
cause  to   arbitration,  the  plaintiff'  is  re- 
lieved  from  the  duty  of  filing  a  descrip- 
tion of  the  land  in  the  prothonotary 's  of- 
fice, on  or  before  the  first  day  of  the  term 
to  which  the  process  is  returnable,  unless 
the  defendant  applies  to  the  Court  for  it. 
Santee  v.  A'eister,  vi.  36 

18.  In  the  modern  proceeding  by  summons 
in  ejectment,  arbitrators  may  award  the 
plaintiff' a  part.  ib. 

19.  If  a  cause  be  referred  to  arbitrators,  it  is 
not  necessary  that  there  should  bo  any 
declaration    or    statement   filed    by  the 
plaintiff',  or  any  thing  inserted  in  the  a- 
ward,  to  shew  the  cause  of  action.  Brown 
v.  Scheajfer,  vi.  177 


20.  An  agreement  for  an  amicable  action  of 
ejectment,  contained  on  the  same  paper 
a  submission  to  reference,  and  a  request 
to  the  prothonotary  to  issue  the  rule  ;  un- 
der which  rule  the  referees  were  then 
sworn,  and  made  their  award-  Heldgood 
under  the  act  of  March  1806,   without 
proof  of  the  agreement  by  a  subscribing 
witness.  Maasey  v.  Thomas,  vi.  333 

21.  Where  the  proceedings  are  by  arbitra- 
tion, neither  declaration   nor  pleadings 
are  necessary.  ib. 

22.  It  must  be  perfectly  clear  that  an  arbi- 
tration has  been  entered  into  under  the 
act  of  21st  March  1806,  or  this  Court  will 
not  reverse  the  proceeding,  because  the 
provisions  of  that  act  have  not  been  com- 
plied with.  Harris  \.  Hayes,  vi.  422 

23.  Upon  an  appeal  from  the  award  of  arbi- 
trators, it  is  error  to  read  the  award  to 
the  jury.  Schaejf'er  v.  Kreitzer,         vi.  430 

ARBITRATORS. 

See  VENIRE  DE  Novo,3. 

1.  A  writ  of  error  lies  to  an  award  of  arbi- 
trators upon  which  a  judgment  has  been 
entered.  2,ev>in  v.  England,  iv.  5 

2.  Where  an  act  of  assembly  says  that  a 
party  shall  not  recover  costs,  arbitrators 
cannot  give  them  to  him.  ib. 

3.  Where  there  has  been  an  award  of  arbi- 
trators, finding  that  the  plaintiff"  has  no 
cause  of  action,  an  affidavit  of  defence  is 
not  requisite.  Gregg  v.  Meeker,       iv.  428 

4.  Arbitrators  have  no  authority  to  award 
a  nonsuit.  If  the  plaintiff'  fails  to  attend, 
the  proper  award  is  that  he  has  no  cause 
of  action.  Miller  v.  Miller,  v.  62 

ARREST.          , 
See  WARRANT. 

An  arrest  may  be  made  for  felony  without 
warrant,  notwithstanding  sec.  7.  art.  9.  of 
the  constitution  ;  and  a  private  person 
may  make  it  at  his  peril  :  but  qiwe  if  he 
can  arrest  for  misdemeanor,  e.  g.  for  re- 
ceiving stolen  goods.  IVukely  v.  Hart, 

vi.  316 

ARTICLES  OF  AGREEMENT. 

See  AGREEMENT,  9. 

Where  articles  of  agreement  have  been 
entered  into  for  the  sale  of  lands,  the  ven- 
dee, upon  tender  ofthe  purchase  money, 
may  enforce  them  by  ejectment.  Rar^on  v. 
J\'orris,  iv.  77 

ASSIGNEE. 
See  OBLIGATION, 2. 

1.  The  Courts  of  Common  Pleas,  have 
power  under  the  act  of  14th  February 


542 


GENERAL  INDEX. 


1729—30,  for  the  relief  of  insolvent 
debtors,  to  appoint  new  asignees,  where 
those  first  appointed  refused  to  act;  and  to 
compel  the  first  assignees  to  convey  their 
interest  to  the  new.  .  But  the  mere  ap- 
pointment of  new  assignees  by  the  Court 
does  not  vest  the  insolvent's  lands  in 
them,  so  that  they  may  support  an  eject- 
ment. Cooper  v.  Henderson,  vi.  189 
2.  The  trustees  of  an  insolvent  debtor  may 
institute  an  ejectment,  without  stating 
their  character  upon  the  record.  ib. 

ASSIGNMENT. 
See  SET  OFF,  2,  3. 

1.  On  the  same  evening  after  a  considera- 
ble verdict  is  obtained  against  A,  he  con- 
veys all  his  property  to  a  trustee  of  his 
own  choice,  for  the  benefit  of  all  his  cre- 
ditors in  equal  proportions.  The  trustee 
lives  at  a  distance,  and  does  not  hear  of 
the  deed    until  four    days   afterwards, 
when  he  assents.     No  possession  of  the 
title  deeds    is  given    until  nearly  two 
months  after,  and  the  debter  continues 
in  possession  of  the  furniture  and  goods 
the  next  day  after  the  execution  of  the 
deed,   which  was  Sunday,  and  part  of 
Monday,  when  they  were  taken  in  exe- 
cution. The  deed  contains  no  schedule  of 
property,  and  no  limitation  of  time  for 
distributing  the  estate.  Held  that  it  is  a 
valid  assignment,  and  takes  effect  from 
its  execution,  as  the  assent  of  the  trustee 
is  presumed  ;  delivery  of  the  title  deeds 
is  unnecessary,  and  non-delivery  of  the 
goods  is  explained.     Wilt    v.  Franklin, 

i.  502 

2.  Although  it  is  most  prudent  and  proper 
for  the  debtor  to  consult  kis  creditors  as 
to  the  choice  of  a  trustee,  when  it  can  be 
done   without  great  inconvenience,  yet 
where  there  is  no  bankrupt  law  existing, 
there  is  no  law  which  forbids  the  debtor 
to  make  the  choice  himself.  i.  502 

3.  A  Schedule  is  more  necessary  where  part 
of  a  debtor's  property  is  conveyed  to  par- 
ticular creditors,  than  where  the   whole 
is  conveyed  for  the  benefit  of  all.    The 
want  of  it  is  a  circumstance  to  be  taken 
into  consideration,  but  it  is  not  conclu- 
sive evidence  of  fraud.         .  i.  502 

4.  An  assignment  by  a  debtor,  of  all  his  pro- 
perty to  trustees  for  the  benefit  of  such 
creditors  as  should  within  a  given  time 
execute  a  release  of  all  demands,  is  good, 
if  certain  of  the  creditors  agree  to  ac- 
cept it  upon  that  condition,  and  is  a  trans- 
feTof  the  property  for  their  use  from  the 
time  of  acceptance.    If  therefore  &f..fa. 
issued  after  the  acceptance,  but  before 
the  execution  of  a  release  by  any  credi- 


tor, be  levied  upon  the  goods  assigned, 
the  sheriff  is  a  trespasser.  Lippincott  v. 
Barker,  \\.  174 

5.  Quaere.  Whether  an   assignment  which 
stipulates  for  a  release  to  the  debtor,  is 
valid  upon  general,  principles.  ib. 

6.  The  general  principle  with  regard  to  the 
assignment  of  personal  chattels  is,  that 
where  the  deed  contains  an  absolute  im- 
mediate assignment,  it  is  necessary  that 
possession  should  accompany  and  follow 
it,  otherwise  it  is  fraudulent  both  at  com- 
mon law,  and  under  the  statute  of  13 
Eliz.  But  only  such  possession  is  requi- 
site as  the  nature  of  the  thing  admits  of. 
Therefore  in  the  case  of  goods  shipped 
for  a  foreign  port,  the  delivery  of  the 
bill  of  lading  and  policy  of  insurance  will 
answer  in  the  first  instance,  provided  the 
claim  of  the  assignee  is  followed  up  with 
reasonable  diligence.   If  it  is  not,  the  as- 
signment becomes  invalid,  as  against  cre- 
ditors. Datxes  v.  Cope,  iv.  258 

7.  Where  a  deed  or  conveyance  is  condi- 
tional, or  to  take  effect  at  some  future 
time,  the  retaining  of  the  possession,  ac- 
cording to  the  intent  of  the  deed,  is  not 
fraudulent.  ib. 

8.  The  assignment  of  an  insolvent  debtor 
passes  all  his  property,  whether  mention- 
ed in  the  schedule  annexed  to  his  peti- 
tion, or  not.  Cooper  \.  Henderson,    vi.  189 

9.  An  assignment  executed  by  an  insolvent 
debtor,  with  an  understanding,  that  part 
of  the  property  assigned  shall  be  convey- 
ed to  trustees  for  the  use  of  his  family, 
is  so  far  as  it  respects  the  property  con- 
veyed in  trust  for  the  family,  fraudulent 
and  void  as  to  all  creditors  who  do  not 
assent  to  the  arrangement ;  and  the  non- 
assenting  creditors  may  take  it  in  execu- 
tion. McAllister  v.  Marshall,          vi.  338 

ASSIZE  OF  NUISANCE. 

1.  An  assize  of  nuisance  cannot  be  removed 
from  the  Common  Pleas  to  the  Supreme 
Court,  by  habeas  corpus.  Livezey  v.  Gor- 
gas,  i.251 

2.  An  assize  of  nuisance  commenced  in  the 
Common  Pleas,  may  be  removed  by  cer- 
tiorarito  the  Supreme  Court,  the  judges 
of  which  have  jurisdiction  as  justices  of 
assize,  and  may  if  necessary  resummon 
the  same  jury  who  viewed  the  nuisance 
by  command  of  the  court  below.  Livezey 
v.  Gorgas,  H.  192 

ASSUMPSIT. 
See  PARTNERS,  2. 

1.  When  the  terms  of  a  special  agreement 
to  do  a  certain  thing  for  a  certain  sum, 


GENERAL  INDEX. 


543 


have  been  performed  by  the  plaintiff,  the 
law  raises  a  duty  in  the  defendant,  for 
which  indebitatus  assumpsit  will  lie.  Kelly 
V.  Foster,  ii.  4 

2.  The  plaintiff  declared  in  indebitatus  as- 
sumpsit for  work  and  labour,  and  proved 
a  promise  by  the  intestate  to   pay   him 
200/.  if  he  would  live  with  him  until  the 
intestate's  death,  which  he  accordingly 
had  done.     Held  that  the  general  count 
was  supported  by  the  proof.  ib. 

3.  In  an  action  of  indebitatus  assumpsit,  the 
defendant  may  demand  of  the  plaintiff 
to  specify  the  nature  of  the  evidence  he 
means  to  offer,  and  until  this  is  done,  the 
Court  will  not  suffer  the  plaintiff  to  bring 
on  the  trial.  ii.  7 

4.  A  moral  or  equitable  obligation  is  suffi- 
cient consideration  for   an   assumption. 
Clark  v.  Herring,  v.  33 

5.  Assumpsit  will   lie  for  an   ascertained 
money  legacy  ;  and  the  plaintiff  may  in 
the  same  count  go  for  an  unascertained 
residuary  legacy.  ib. 

ATTACHMENT  DOMESTIC. 

The  sheriff  is  not,  by  a  domestic  attach- 
ment, invested  with  the  rights  of  the 
defendant,  in  property  that  has  been 
pledged  by  him.  He  is  quoad  hoc  a  stran- 
ger, and  liable  in  damages  to  the  same 
extent  in  case  of  a  trespass.  Lyle  v.  Bar- 
ker, v.  457 

ATTACHMENT  FOREIGN. 

See  SET  OFF,  1. 

LACHES,  2. 

1.  If  the  garnishee  in  a  foreign  attachment 
pay  over  to  the  plaintiff  the  debt  attach- 
ed, without  being  compelled  by  due  pro- 

.  cess  of  law,  and  without  requiring  the 
stipulation  ordered  by  act  of  assembly,  it 
will  not  discharge  him  from  the  original 
debt.  Myers  v.  Ulrick,  i.  25 

2.  Upon  the  plea  of  nulla  bona  to  a  scire 
facias  against  a  garnishee,  the  jury  must 
find  tike  specific  goods  in  the  garnishee's 
hands;  a  verdict  finding  goods  of  a  certain 
value   in  the  defendant's  hands,  is  bad. 
But  if  they  find  the  goods,  they  may  also 
find  their  value,  to  save  the  necessity  of  a 
special  inquest.  Crawford  v.  Barry,  i.  481 

3.  The  Court  will  not  dissolve  a  foreign 
attachment  merely   because   there    has 
been  no  writ   of  inquiry   executed  for 
fourteen  years,  if  the  delay  is  acccounted 
for.  Cooison  v.  Turner,  ii.  453 

4.  If  a  creditor  of  A  lays  an  attachment  upon 
goods  which  appear  as  the  property  of 


A,  but  wherein  B  has  nevertheless  an 
interest,  which  he  communicates  to  the 
creditor  before  the  attachment  is  laid, 
the  creditor  is  bound  to  refund  B  his 
proportion  of  the  money  recovered  un- 
der the  attachment,  notwithstanding  the 
judgment  of  a  competent  court  decreed 
the  whole  to  him  as  the  property  of  Jl. 
Bank  of  North  America  v.  M'Call,  iii.  338 

5.  Shitere,  whether  it  is  the  same  with  an 
equitable  assignee   of  Jl,  who  gives  no 
notice  of  his  claim  until  after  the  attach- 
ment, tb. 

6.  Stock  of  the  Bank  of  the  United  States, 
which  has  been  sold  bona  Jide,  and  the 
certificate    delivered    to   the  purchaser 
with  a  power  of  attorney  to  transfer  it 
upon  the  books  of  the  bank,  is  not  liable 
to  attachment  as  the  property  of  the  ven- 
dor, although  it  is  standing  in  his  name 
on  the  books  of  the  bank,  at  the  time 
of  the  attachment.  Ttie  United  States  v. 
Vaughan,  iii.  394 

7.  A  chose  in  action  which  has  been  equi- 
tably assigned,  is  not  subject  to  attach- 
ment as  the  property  of  the  assignor,  ib. 

8.  The  plaintiff  in  a    foreign  attachment 
stands  upon  no  better  footing  as  to  the 
thing  attached,  that  his  debtor,  the  de- 
fendant in  the  attachment.  ib. 

9.  There  is  no  necessity  fora  scire  facias  to 
revive  a  judgment  in  foreign  attachment. 
Cookson  v.  Turner,  iii.  416 

10.  There  is  nothing  so  contrary  to  reason 
in  the  attachment  of  the  property  of  a 
man  who  is  dead,  as  to  invalidate  the 
proceeding  for  that  cause,  provided  the 
law  of  the  forum  where  the  suitis  brought, 
permits  it.  Bank   of  North   America  v. 
M'Call,  iv.  371 

11.  §>ii<ere,  whether  a  citizen  of  Pennsylva- 
nia can  obtain  a  preference  out  of  the 
effects  of  a  deceased  insolvent,  who  was 
also  a  citizen  of  the  same  state,  by  attach- 
ment in  a  foreign  country.  It  seems  that 
lawfully  he  cannot ;  but  if  he  does,  his 
right  can  be  questioned  only  by  some 
person  acting  in  behalf  of  the  creditors 
generally.  ib. 

12.  Motion  for  rule  to  shew  cause  why  fo- 
reign attachment  should  not  be  dissolved, 
is  in  time  at  December  term,  if  the  attach- 
ment was  returnable  at  July  ;  that  term 
consisting   of  but  one   day.   Kearney  v. 
M'Cullough,  v.  389 

13.  An    assignment  by  commissioners  of 
bankrupt  in  England,  does  not  prevent  an 
attachment  of  the  bankrupt's  effects  by 
an  American  creditor.   Milne  V.Jtoreton, 

vi.  353 


544 


GENERAL  INDEX. 


ATTAINDER. 

See  CURTESY. 

The  proceedings  before  the  Supreme  Court 
under  the  act  of  the  6th  of  March  1778, 
by  a  person  claiming1  an  interest  in  an 
estate  alleged  to  be  forfeited,  though 
conclusive  against  all  persons  claiming 
under  the  Commonwealth  by  virtue  of 
the  attainder,  are  not  so  against  persons 
claiming  paramount  the  attainder.  Lessee 
of  Maday  v.  Wurk,.  v.  154 

ATTORNEY. 

1.  If  an  attorney  enters  his  appearance  ge- 
nerally to  a  suit  against  two  defendants, 
one  of  whom  only  is  summoned,  it  is  a 
good  appearauce  for  both.  M'Cullough  v. 
Guctner,  i-  214 

2.  The  authority  of  the  defendant's  attorney 
is  competent  to  restore  an  action  after 
non-pros,  without    the   consent   of    his 
client.  Beinholdt  v.  Alberti,  i.  469 

AUDITORS. 

See  ORPHANS'  COURT,  3. 

If  the  auditors  of  commissioners'  accounts, 
do  not  make  return  of  their  report  at  the 
next  term  of  the  Common  Pleas  after  the 
settlement,  the  commissioners  are  entitled 
to  sixty  days  after  actual  notice  of  such 
return  to  enter  an  appeal.  Irish  v.  The 
Commonwealth,  iii.  91 

AVERAGE  GENERAL. 

1.  Seamen's  wages  and  provisions  incurred 
during  an  embargo,  are  general  average. 
The  Insurance  Company  of  North  America 
v.  Jones  and  Clark,  ii.  547 

2.  The  owner  of  goods  liable  to  general 
average,  is  personally  responsible  for  the 
amount  of  his  contribution,  notwithstand- 
ing he  has  abandoned  to  the  underwri- 
ters. Delaware  Ins.  Co.  v.  Delaunie, 

iii.  295 

3.  A  loss  by  general  average  is  not  a  good 
ground  of  abandonment.  Lapsky  v.  Plea- 
sants,  iv.  502 

4.  To  constitute  general  average,  it  is  ne- 
cessary that  the  ship  should  be  in  dis- 
tress, that  a  part  should  be  voluntarily 
sacrificed  to  save  the  rest,  and  that  the 
sacrifice  should  be  conducive  to  the  sav- 
ing; but  it  seems  that  previous  consulta- 
tion between  the  officers  and  crew  is  not 
necessary;  nor  is  it  necessary  that  the  part 

.  sacrificed  should  be  exposed  to  greater 
danger  by  encountering  the  loss,  than  it 
would  otherwise  have  been.  As  if,  from 
the  violence  of  the  winds,  a  ship  must  go 
ashore  somewhere,  and  she  chooses  a 


place,  where  she  will  be  at  least  as  safe 
as  she  could  be  any  where  else,  still  if 
she  selects  her  place,  and  incurs  a  cer- 
tain loss  thereby  for  the  common  benefit, 
it  is  general  average.  Sims  v.  Gurnty, 

iv.  523 

AWARD. 

See  ARBITRATORS. 
REFEREES. 

2.  An  award  of  a  certain  sum  to  the  defen- 
ant,  deducting  an  unsettled  account  of 
the  plaintiff  to  the  defendant,  is  void. 
Zerger  v.  Sailer,  vi.  24 

2.  In  an  action  of  trespass  quare  clausum 
fregit  &c.  referred  to  arbitration  without 
declaration  or  plea,  the  arbitrators  award- 
ed as  follows  :  "  We  do  award  the  lands 
"in  dispute  in  favour  of  the  defendant, 
"  and  the  division  as  it  now  stands  to  be 
"  the  established  line."  Held,  that  the  de- 
fendant could  recover  no  land  under  the 
award,  nor  were  the  boundaries  fixed  by 
it,  that  not  being  a  matter  about  which 
the  parties  were  at  variance  in  the  suit, 
but  merely  a  claim  of  damages.  The  a- 
ward  is  good,  however,  as  a  general  find- 
ing, that  the  plaintiff  had  no  cause  of  ac- 
tion. Richter  v.  Chamberlin,  vi.  34 

8.  An  award  in  favour  of  the  plaintiff  in 
ejectment,  "  agreeable  to  the  decision 
"of  the  board  of  property,"  is  sufficient- 
ly certain,  there  being  a  decision  between 
the  same  parties  in  relation  to  the  same 
land.  Santee  v.  Keister,  vi.  36 

4.  The  parties  having  in  an  action  of  eject- 
ment referred  a  dispute  about  boundary, 
an  award  "  in  favour  of  the  plaintiff  by 
"  running  a  line"  particularly  described, 
is  good,  and  is  in  effect  an  award  to  the 
plaintiff  of  the  land  in  dispute  up  to  the 
dividing  line.  Masseyv.  Thomas,  vi.  333 

BAIL. 

See  INSOLVENT  DEBTOR. 
ERROR,  8. 

1.  Upon  the  plea  of  comperuit  ad  diem,  al- 
though it  is  by  consent  made  an  issue  of 
fact,  the  acceptance  of  a  plea  and  going 
to  trial  in  the  original  action,  do  not  en- 
title  the  bail  to   a  verdict.     Their  only 
mode  to  take  advantage  of  a  waiver,  is 
by  application  to  the  Court.   Hayden  v. 
Adams,  assignee  &c.,  ii.  232 

2.  Shuere,  Whether  special  bail  can  be  en- 
tered, and  the   defendant  surrendered, 
before  the  return  day  of  the  capias.  Hert- 
zogv.  Ellis,  iii.  212 

3.  A  capias  may  issue  for  any  cause  of  ac- 
tion whatever,  against  a  freeholder  who 
neglects  to  put  in  special  bail  upon  notice. 
Jack  v.  Shoemaker,  iii.  280 


GENERAL  INDEX. 


545 


4.  If  special  bail  has  been  entered  at  the 
commencement  of  a  suit,  in  a  sum  suffi- 
cient to  secure  the  amount  which  has 
been  awarded  by  arbitrators  in  the  cause, 
it  is  not  m-cessary  for  the  defendant  to 
enter  special  bail  de  navo  to  entitle  him- 
self to  a  stay  of  execution  for  thirty  days 
after  judgment,  according  to  the   llth 
section   of  the  act  of  20th  March  1810, 
and  the  seventh  section  of  the  act  of  21st 
March  1806.   Perlasca  v.  Spargeila, 

iii.  427 

5.  If  between  the  return  of  a  ca.  sa.  against 
the  principal,  and  the  return  of  a  *ci.  fa. 
against  the   bail,  the   principal    is   dis- 
charged under  a  bankrupt  or  insolvent 
law,  the  bail  are  entitled  to  an  exoneretur. 
Boggs  v.  Teackk,  v.  332 

6.  A  is  arrested  and  held  to  bail  in  Pennsyl- 
vania for  a  debt  contracted  in  the  District 
of  Columbia.  He  is  af  erwards  discharged 
under  a  general    statute    of  Maryland, 
where  he  resides,from  all  his  debts,  upon 
the  surrender  of  his  property  to  trustees  ; 
and  is  exempted  by  a  special  statute  from 
the  necessity  of  giving  notice  to  his  cre- 
ditors. Held,  that,  as  the  state  of  Maryland 
gives  effect  to  a  discharge  under  the  law 
of  Pennsylvania,  the  same  effect  ought  to 
be  given  to  hers,  and  therefore  the  bail 
is  entitled  to  an  exoneretur.  ib. 

7.  Bail  are  entitled  to  an  exoneretur,  where 
the  principal  has  been  discharged  under 
a  bankrupt  law,  upon  paying  the  costs  of 
the  scire  facias  merely,  and  not  those  of 
the  original  suit.  Boggs  v.  Bancker,  v.  507 

8.  A  contracted  a  debt  in  Pennsylvania,  and 
then  removed  to  Maryland,  where  he  was 
discharged  under  a  bankrupt  law.  He  af- 
terwards returned  to  Pennsylvania,  and 
was  arrested.  The  Court  discharged  him 
on  common  bail.  Hilliard  v.  Greenleaf, 

v.  336 

9.  A  discharge  in  the  District  of  Columbia, 
under  the  insolvent   law  of  Congress, 
does  not  entitle  bail  in  this  state  to  an 
exoneretur,   because,   according    to    the 
opinions  of  the  Court  of  last  resort  in 
that  district,  adischarge  under  the  insol- 
vent law  of  Pennsylvania  would  not  be 
recognised  there  ;  the  debt  being  con- 
tracted and  due  to  a  person  out  of  the 
jurisdiction  of  the  place  where  the  dis- 
charge was  obtained.  Walsh  v.  Nourse, 

v.  381 

10.  Bail  refused  in  an  action  of  trespass 
against  the  officers  of  a  court  martial  for 
imprisoning  the  plaintiff;  it  not  appearing 
that  they  had    exercised   their  power, 
whether    legally   or   illegally   assumed, 
with  oppression,  Duffieldv,  Smith,  vi.  302 

VOL.  VI. 


BAIL  BOND. 

Proceedings  in  the  bail  bond  suit  staid  at 
the  third  term  of  the  original  action, 
upon  paying  costs,  entering  special  bail, 
and  givingthe  plaintiff  a  judgment  in  the 
original.  Priettman  v.  Keyser,  iv.  344 

BAILMENT. 

The  pawnee  of  goods  may  maintain  tres- 
pass against  a  stranger  who  takes  them 
awav,  and  recover  the  whole  value  in 
damages,  although  they  were  pledged 
for  less.  He  is  answerable  for  the  excess 
to  the  person  who  has  the  general  pro- 
perty. Lyle  v.  Barker,  v.  457 

BAILPIECE. 

Where  the  bail  has  paid  the  debt  due  by 
his  princip  1,  and  the  Utter  has  paid  no- 
thing, the  Court  will  not  at  the  instance 
of  the  principal,  and  against  the  wish  of 
the  bail,  order  an  excntretnr  upon  the 
bailpiece,  before  the  principal  has  been 
taken.  Ketland  \ .  Medford,  i.  497 

BANK.  OF  UNITED  STATES. 

Notwithstanding  the  expiration  of  the  cor- 
porate powers  of  the  late  Bank  of  the 
United  States,  it  is  still  an  indictable  of- 
fence, and  punishable  within  the  act  of 
22d  of  April  1794,  to  pass  a  counterfeit 
note  of  that  bank,  knowing  it  to  be  such  ; 
and  any  forged  note,  counterfeiting  a  ge- 
nuine note  of  that  bank  issued  during 
the  existence  of  its  corporate  powers,  is 
a  counterfeit  note  of  that  bank.  White  v. 
The  Common-wealth,  iv.  418 

BANK  CHECK. 
See  PAYMENT. 

BANK  NOTES. 
See  INDICTMENT,  5. 

BANK  STOCK. 
See  ATTACHMENT  FOREIGN,  6. 

BANKING  COMPANIES. 
The  act  of  19th  of  March  1810,  which  pro- 
hibits  the  circulation  of  notes  of  an  unin- 
corporated bank,  does  not  apply  to  the 
circulation  of  a  bank  which  has  once  been 
incorporated,  but  whose  powers  have  ex- 
pired. White  v.  The  Coinmonviculth,  iv.  418 

BANKRUPT. 

See  EVIDENCE,  6,  7. 
BAIL,  5,  6,  7,8,  9. 

1.  The  proceedings  of  the  commissioners  of 
3Z 


546 


GENERAL  INDEX. 


bankrupt  are  finished,  within  the  51st 
section  of  the  act  of  JlprilA,  1800,  when 
the  commissioners  have  proceeded  on  the 
commission,  examined  the  bankrupt,  and 
other  witnesses,  admitted  the  creditors 
to  prove  their  debts,  and  assigned  the 
bankrupt's  estate.  Rugan  v.  West,  i.  263 

2.  The  preference  given  by  the  act  of  March 
1,   1799,  to   sureties   in    custom-house 
bonds  is  not  taken  away  by  the  bankrupt 
act.   Champneys  v.  Lyle,  i.  327 

3.  The  certificate  of  a  bankrupt's  conformi- 
ty, is  conclusive  evidence  of  the  trading 
and  bankruptcy,  &c.  in  a  suit  between  the 
assignees  and  a  debtor  of  the  bankrupt ; 
but  in  a  suit  by  a  creditor  against  the 
bankrupt  himself,  it  is  but  prima  facie 
evidence ;  and  under  a  plea  that  it  was 
•unfairly  obtained,  the  creditor  may  prove 
that  the   defendant  was  not   a    trader 
within  the  meaning  of  the  bankrupt  law. 
Blylhe  v.  Johns ,  v.  247 

4.  If  a  bankrupt,  between  the  date  of  his 
commission  and  his  certificate  of  con- 
formity, indorses  a  promissory  note,  he  is 
liable  to  an  action  upon  the  note  by  the 
indorsee,  whether  the  bankrupt  borrow- 
ed it  for  his  own  accommodation  or  gave 
value  for  it,  and  whether  the  note  be- 
came the  property  of  his  assignees  or  did 
not. 

It  seems,  that  a  note  which  a  bankrupt  ac- 
quires between  his  commission  and  cer- 
tificate, becomes  the  property  of  his  as- 
signees, unless  it  is  lent  to  him  as  an 
accommodation.  Sparhaivk  v.  Broame, 

vi.  256 

5.  An    assignment    by  commissioners   of 
bankrupt  in  England,  does  not  prevent 
an  attachment  of  the  bankrupt's  effects 
by  an  American  creditor.  Milne  v.  More  ton, 

vi.  353 

BANKRUPTCY. 

See  AGREEMENT,  9. 

A  covenant  by  C  that,  A  shall  pay  what  B 
recovers  against  him  in  a  suit  to  be 
brought,  and  for  which  payment  C  binds 
himself,  his  heirs,  &c.,  is  not  discharged 
by  the  bankruptcy  and  certificate  of  A. 
Bond  v.  Gardiner,  iv.  269 

BARGAIN  AND  SALE. 

1.  If  a  bargain  and  sale  recite  a  considera- 
tion of  money,  and  the  jury  find  that  no 
money  was  paid,  this  part  of  the  verdict 
goes  for  nothing.     No  averment  can  be 
made  against  such  a  recital.     Wilt  v. 
Franklin,  i.  502 

2.  A  purchaser  is  not  bound  to  accept  a 
deed  of  bargain  and  sale,  in  which  there 


is  a  blank  left  for  the  consideration  mo- 
ney, notwithstanding  the  grantors,  after 
acknowledgment  of  the  deed  by  them, 
have  authorized  their  agent  to  fill  the 
blank.  Moore  v.  West,  ,  iv.  1 

3.  A  valuable  consideration  of  some  amount, 
is  essential  to  a  bargain  and  sale.      iv.  4 

4.  The  bargain  and  sale  of  a  warrant  and 
survey,  is  within  the  recording  act  of 
18th  March  1775;  and  therefore  if  not  re- 
corded within  six  months,  is  void  against 
a  subsequent  purchaser  without  notice. 
Lessee  of  Carrey  v.Caxton,  iv.  140 

BARON  AND  FEME. 

See  EVIDENCE,  11. 
EXECUTION,  10. 

1.  The  curtesy  estate  of  the  husband  in  the 
lands  of  the  wife  is  not  forfeited  to  the 
commonwealth  for  the  life  of  the  hus- 
band  by  his  attainder  for  treason  com- 
mitted in  her  lifetime  and  after  issue 
born  ;  but  the  wife's  estate  is  discharged 
from  the  curtesy.    Lessee  of  Pembrrton  v. 
Hicks,  i.  1 

2.  The  courts  of  Pennsylvania  have  no  au- 
thority to  insist  on  a  provision  for  the 
wife,  when  the  husband  applies  for  her 
personal  property.  Yoke  v.  Barnet,  i.  358 

3.  A  deed  of  the  wife's  land  by  the  husband 
and  wife,  who  by  a  certificate  indorsed 
thereon,  appeared  before  a  judge  of  the 
common  pleas,  and  "  acknowledged  the 
"  indenture  to  be  their  act  and  deed,  and 
"  desired  the  same  to  be  recorded,  she 
"being  of  full  age  and  by  him  examined 
"apart,"  is  not  sufficient  to  pass  the 
wife's  estate.  Lessee  of  Watson  v.  Bailey, 

i.  470 

4.  A  count,  charging  man  and  wife  upon  a 
joint  assumption,  in  consideration  of  mo- 
ney had  and  received  by  them  to  the 
plaintiff's  use  is  bad.    Grosser  v.  Eckart, 

i.575 

5.  A  conveyance  of  the  husband's  land  by 
husband  and  wife,  without  an  acknow- 
ledgment by  the  wife  agreeably  to  the 
act  of  24th  of  February  1770,  does  not 
impair  the  wife's  right  of  dower.  Kirk  v. 
Dean,  ii.  341 

6.  Action  will  lie  against  husband  and  wife, 
for  slanderous  words  spoken  by  the  wife 
before  marriage.  Haiok  v.  Harmon,  v.  43 

7.  A  wife  who  is  entrusted  by  her  husband 
to  transact  the  ordinary  business  of  a  tavern, 
has  no  authority  to  bind  the  husband  by 
a  special  contract  to  find  oats  and  hay 
for  stage  horses,  and  board  for  drivers, 
at  less  than  the  usual  rates.    Webster  v. 
M'Ginnis,  v.  235 


GENERAL  INDEX. 


547 


8.  A  deed  by  husband  and  wife,  executed 
in  Baltimore  county  in  the  state  of  Mary- 
land where  they  resided,  and  acknow- 
ledged before  two  justices  for  that  coun- 
ty, whose  certificate  was  accompanied  by 
the  attestation  of  the  clerk  of  the  County 
Court,  under  the  seal  of  the  court,  "  that 
"  the  persons  who  took  the  acknowledg- 
"  ment  were  justices  of  the  peace,  and 
"  that  there  were  no  magistrates  superi- 
"  or  to  them  in  Baltimore  county,"  is  duly 
acknowledged  within  the  act  of  the  24th 
of  February  1770,  which  gives  effect  to 
acknowledgments  of  deeds  by  husband 
and  wife,  "  made  before  any  mayor  or 
"  chief  magistrate  or  officer  of  the  cities, 
"towns,  or  places,   where  such   deeds 
"  are  or  shall  be  made  or  executed,  and 
"  certified  under  the  common  or  public 
"seal  of  such  cities,  towns  or  places." 
Lessee  ofM'Intire  v.  Ward,  v.  296 

9.  It  is  not  essential  that  the  words  of  the 
act  of  the  24th  of  February  1770,  in  rela- 
tion to  acknowledgments  by  femes  covert, 
should  be  used  by  the  magistrate  ;  it  is 
sufficient  if  the  directions  of  the  act  are 
substantially  complied  with  ;   and  there- 
fore if  it  appears  from  the  whole  certifi- 
cate that  the  contents  of  the  deed  were 
known  to  the  wife,  it  is  as  effectual  as  if 
the  magistrate  had  certified  that  he  read 
or  otherwise  made  them  known  to  her. 
Hence  if  it  is  said  that  she  acknowledged 
the  premises  "within  mentioned"  or  the 
like,  to  be  the  right  &c.  of  the  grantee, 
it  is  good.  ib. 

10.  §>u.  Whether  it  is  necessary  that  it 
should  appear  at  all  on  the  face  of  the 
certificate,  that  the  contents  of  the  deed 
were  made  known  to  the  wife.  ib. 

11.  The  certificate  of  an  acknowledgment 
by  husband  and  wife,  that  an  indenture 
was  their  act  and  deed,  which  they  de- 
sired to  be  recorded  as  such,  "  she  the 
"  said  (wife)  being  of  full  age,  separate 
"  and  apart  from  her  said  husband  ex- 
"  amined,  and  the  full  contents  made 
"  known   to    her,    voluntarily  consenting 
"  thereto,"    is   good.     Shaller  v.   Brand, 

vi.  435 

12.  If  the  husband  has  access  to  his  wife, 
no  evidence  short  of  his  absolute  impo- 
tence can  bastardize  the  issue ;   but  if 
they  live  at  a  distance  from  each  other, 
so   that  access  is   very  improbable,  the 
question  of  legitimacy  may  be  decided 
on  a  consideration  of  all  the  circumstan- 
ces.   Commonwealth  v.  Shepherd,     vi.  283 

13.  A  husband  cannot  be  a  witness,  where, 
inconsequence  of  his  testimony,  his  wife 
may  receive  a  benefit  after  his   death. 
Lessee  of  Snyder  v.  Snyder,  vi.  483 


14.  §>u.  Whether  a  feme  covert  is  a  good 
witness  to  support  the  title  of  a  grantee 
from  her  husband,  when  her  right  of 
dower  has  not  been  released.  Lessee  of 
Svueitzer  v.  J\fieeset  vi.  500 

BARRATRY. 

1.  Any  trick,  cheat,  or  fraud,  and  any  crime 
or  wilful  breach  of  law  committed  by  the 
captain  to  the  prejudice  of  his  owners,  is 
barratry.     Wilcox  v.  the  Union  Insurance 
Company,  ii.  574 

2.  The  rescue  of  a  neutral  vessel  by  her 
own  crew,  from  the  hands  of  the  cap- 
tors who  are  taking  her  in  for  adjudica- 
tion, is  an  act  of  barratry.  id. 

BASTARD. 

1.  The  time  during  which  the  reputed  fa- 
ther of  a  bastard  child  shall  be  ordered 
to  maintain  it,  is  entirely  within  the  dis- 
cretion  of  the   Sessions,  who  are  not 
bound  by  any  practice  however  uniform, 
that  may  have  been  adopted  by  them- 
selves or  other  courts  upon  the  subject. 
Addis  v.  The  Commonwealth,  iv.  541 

2.  If  the  husband  has  access  to  his  wife,  no 
evidence  short  of  his  absolute  impotence 
can  bastardize  the  issue  ;  but  if  they  live 
at  a  distance  from  each  other,  so  that 
access  is  very  improbable,  the  question, 
of  legitimacy  may  be  decided  on  a  con- 
sideration of  all  the  circumstances.  Com- 
mon-wealth v.  Shepherd,  vi.  283 

BEES. 

So  long  as  wild  bees  remain  in  the  tree 
where  they  have  hived,  notwithstanding 
the  tree  is  upon  the  land  of  an  individual, 
and  he  has  confined  them  in  it,  they  are 
not  the  subject  of  a  felony.  Wallis  v. 
Mease,  iii.  546 

BILL  OF  EXCEPTIONS. 

1.  A  bill  of  exceptions  to  the  charge,  may 
be  tendered  at  any  time  before  the  jury 
have   delivered  their   verdict   in    open 
court.  Jonesv.  The  Insurance  Co-  of  North 
America,  i.  38 

2.  A  bill  of  exceptions  does  not  lie  to  the 
opinion  of  the  Court,  in  receiving  or  re- 
jecting testimony  upon  a  motion  for  sum- 
mary relief.  Shorts  v.  Qtigley,  i.  222 

3.  A  bill  of  exceptions  lies  to  the  opinion 
of  the  Common  Pleas,  upon  the  trial  of 
a  feigned    issue    from    the   Register's 
Court.  Vansant  v.  Boileau,  i.  444 

4.  If  a  judge  in  his  charge  expresses  an 
opinion  upon  facts,  which  is  not  warrant- 
ed by  the  evidence,  the  remedy  is  by  a 


548 


GENERAL  INDEX. 


motion  for  a  new  trial,  and  not  by  a  bill 
of  exceptions.  Burd  v.  The  Lessee  of 
Dans  dale,  ii.  80 

5.  The  refusal  of  the  Court  to  order  a  non- 
suit, is  no  ground  for  a  bill  of  exceptions. 
Girard  v.  Getting,  ii.  234 

6.  No  advantage  can  be  taken  by  bill  of 
exceptions,  of  an  erroneous  opinion  on  a 
point  of  law  immaterial  to  the  issue  ;  but 
the  plaintiff  in  error  may  assign  error  in 
an  opinion  on  any  point  material  to  the 
issue,  appearing  on  the  bill  of  exceptions, 
although   it   was  not    particularized   in 
stating  the  exceptions  below.  The  Phcmix 
Insurance  Company  v.  Pratt,  ii.  308 

BILL  OF  EXCHANGE. 

1.  It  seems  that  the  acceptor  of  a  forged 
bill  is  bound  to  pay  it,  not  upon  the  prin- 
ciple  that   his  acceptance  has  given  a 
credit  to  the   bill,  but  because  it  is  his 
duty  to  know  the  drawer's  handwriting, 
which  he  is  precluded  from  disputing. 
Levy  v.  Bank  of  the  United  States,         i.  27 

2.  A  drevr  a  foreign  bill  of  exchange  in  fa- 
vour of  B,  and  with  his  blank  indorse- 
ment on  it,  handed  it  over  to   C  as  a 
security  for  an  unascertained    balance 
supposed  to  be  due  from  A  to  C.    C  deli- 
vered the  bill  to  D,  to  be  remitted  to 
the  drawee  for  acceptance  and  payment, 
taking  from  him  a  memorandum  acknow- 
ledging the  receipt  of  the  bill,  and  pro- 
mising to  pay  C  the  amount,  deducting  a 
certain  discount,  when  advice  should  be 
received  of  its  payment.     Shortly  after- 
wards, C  assigned  the  memorandum  to 
JE  as  a  security.  The  bill  was  protested, 
and  on  its  return   was   delivered  to  E, 
who  brought  an  action  against  B  the 
indorser.    Held,  that  E  did  not  take  the 
bill  in  the  usual  course  of  trade,  but  sub- 
ject to  every  equity  that  there  was  be- 
tween the  original  parties ;  and  therefore 
that  he  could  recover  no  more  on  the 
bill,  than  the  balance  due  from  A  to  C. 
Evans  v.  Smith,  iv.  366 

3.  The  holder  of  a  bill  must  use  reasonable 
diligence  to  ascertain  the  residence  of 
the  drawer,  for  the  purpose  of  giving  him 
notice  of  its  dishonour.  It  is  not  sufficient 
to  look  for  the  drawer  at  the  place  where 
the  bill  is  dated,  if  his  residence  is  else- 
where.    Notice  left  with  the  family  of  a 
seafaring  man,  during  his  absence  at  sea, 
is  sufficient.  Fisfier  v.  Evans,  \.  541 

BILL  OF  LADING. 

If  an  agent  indebted  to  his  principal  ships 
property  to  him  on  board  a  vessel  belong- 
ing- to  a  third  person,  (although  bound  to 


conform  to  the  agent's  orders,)  and  the 
captain  signs  a  bill  of  lading  deliverable 
to  the  principal,  the  property  thereupon 
vests  in  the  principal,  and  the  agent  can- 
not countermand  or  disturb  the  ship- 
ment. Summeril  v.  Elder,  i.  106 

BLOCKADE. 

A  vessel  sails  from  Charleston  to  Cadiz, 
without  any  notice  of  its  being  in  a  state 
of  blockade,  and  within  a  short  distance 
of  the  port  is  brought  to  by  the  blockad- 
ing squadron,  and  warned  not  to  enter 
on  account  of  the  blockade.  The  mate 
and  four  hands  are  taken  out  of  her,  and 
an  officer  and  eight  men  put  on  board, 
with  orders  to  stay  by  the  fleet.  Ten  days 
afterwards  the  captain  is  taken  out  of 
her,  and  carried  to  the  admiral  of  the 
fleet,  who  says  to  him,  "  We  have 
'  thought  of  setting  you  at  liberty ;  and 
in  case  we  do,  what  port  will  you  pro- 
ceed for  ?"  The  captain  replies,  "  in 
case  I  receive  no  new  instructions,  I 
shall  follow  my  old  ones."  "That  I 
'  suppose  will  be  for  Cadiz."  "  Certainly, 
'  unless  I  have  new  orders."  This  is  not 
an  attempt  to  enter,  and  therefore  no 
breach  of  blockade.  §>u.  Whether  any 
declaration  of  an  intention  to  enter, 
amounts  to  an  attempt.  Calhoun  v.  The 
Insurance  Company  of  Pennsylvania,  i.  293 

BOARD  OF  PROPERTY. 

See  APPLICATION,  5. 

The  board  of  property  has  the  same  judi- 
cial power,  in  regard  to  donation  lands, 
as  in  other  cases  ;  and  after  they  have 
deliberated  and  decided  against  issuing 
patents,  a  mandamus  does  not  lie  to 
compel  them.  Commonwealth  v.  Cochran, 

vi.  456 

BOND. 

See  PLEADING,  1.  6,  7- 
EVIDENCE,  24. 

1.  Where  the  condition  of  a  bond  is  for  the 
payment  of  interest  annually,  and  of  the 
principal  at  a  distant  day,  the  interest 
may  be  recovered  before  the  principal  is 
due,  by  an  action  of  debt  on  the  bond. 
Sparkes  v.  Garrigues,  i.  152 

2.  A  bond  is  a  proper  subject  of  a  donatio 
causa  mortis.    Wells  v.  Tucker,       iii.  366 

BOTTOMRY. 

1.  To  constitute  a  bottomry,  where  the 
interest  reserved  is  more  than  legal  in- 
terest, it  is  essential  that  the  money  lent 
and  interest  should  be  put  at  risk.  If  they 


GENERAL  INDEX. 


549 


are  payable  at  all  events,  or  if  there  is 
collateral  security  given  for  them  which 
is  payable  at  all  events,  no  matter  by 
what  name  the  contract  is  called  in  the 
instrument  of  writing  which  contains  it, 
it  is  not  a  bottomry.  Jennings  v.  Ins.  Co. 
Penns.  iv.  iJ44 

2.  Qu<erc,  whether  a  bottomry  cannot  be 
made  to  secure  a  sum  of  money  with 
legal  interest  payable  at  all  events,  and 
accompanied  with  collateral  security,  ib. 

BOUNDARY. 

See  EVIDENCE,  74. 

BROKER. 
See  INSURANCE,  9. 

BY-LAW. 

A  by-law  to  expel  a  member  for  vilifying 
any  of  the  members  of  a  corporation  is 
void,  unless  there  is  an  express  power  in 
the  charter  to  amove  for  such  a  cause. 
Common-wealth  v.  The  St.  Patrick  Benevo- 
lent Society,  ii-  441 

CAPIAS. 

A  capias  may  issue  for  any  cause  of  action 
whatever  against  a  freeholder,  who  ne- 
glects to  put  in  special  bail  upon  notice. 
Jack  v.  Shoemaker,  iii.  280 

CARRIER. 

See  ACTION,  7. 

1.  Quaere.  Whether  carriers  by  water  on  the 
Jitniata  and  other  rivers  in  Pennsylvania, 
are  answerable  in  the  same  degree  as 
common  carriers  by  the  law  of  England. 
It  seems  that  they  are.  Lea  v.  Stroud, 

ii.  74 

2.  If  a  vessel  founders,  the  carrier  must 
prove  that  she  was  seaworthy,  before  he 
can  bring  himself  within  the  excuse  of 
its  being  the  act  of  God  ;  but  she  need 
only  be  seaworthy  for  the  trade  in  which 
she  is  employt-d.  That  which  would  con- 
stitute seaworthiness  for  a  short  voyage 
upon  the  lakes,  may  not  be  seaworthiness 
for  a  voyage  upon  theocean.  Jiellv.  Sea  I, 

iv.  127 

3.  If  the  facts  of  a  loss  at  sea  are  such,  as 
that  it  may  be  fairly  attributed  to  inevita- 
ble accident,  and  the  owner  of  the  goods 
means  to  allege  that  the  vessel  was  not 
seaworthy  at  her  departure,  the  onus  pro- 
bandi  lies  on  him,  and  not  on  the  carrier. 

ib. 


4.  The  man  who  undertakes  to  transport 
goods  by  water  for  hire,  is  bound  to  pro- 
vide a  vessel  sufficient  in  all  respects  for 
the  voyage,  well  manned  and  furnished 
with  sails,  cordage,  anchors,  and  all  ne- 
cessary  furniture.     If   a  loss   happens 
through  a  defect  in  any  of  these  respects, 
the  currier  must  make  it  good.  ib. 

5.  A  carrier's  vessel  must  be  seaworthy,  or 
he  must  answer,  although  the  loss  does 
not  proceed  from  unseaworthiness.      ib. 

CA.  SA. 

See  EXECUTION,  2. 
POUNDAGE,  2. 

CASE  STATED. 

A  motion  to  withdraw  a  case  which  had 
been  stated  by  three  parties,  refused  up- 
on the  application  of  one,  notwithstand- 
ing one  o:  the  Court  had  given  an  opinion 
in  the  cause,  while  at  the  bar,  and  an- 
other was  a  stockholder  in  the  company 
by  whom  the  action  was  brought.  Bank 
of  North  America  v.  Fitzsimons,  ii.  454 

CERTIFICATE. 

See  JUDGE,  3. 
SURVEYOR,  3. 

CERTIORARI. 

1.  A  certiorari  to  remove  proceedings  be- 
fore a  justice  of  the   peace  into  the  Su- 
preme Court,  does  not  require  a  special 
allocatur.  Common-wealth  v.  Willow  Grove 
Turnpike  Company,  ii.  257 

2.  The  rule  is,  that  where  a  new  jurisdic- 
tion is  created  by  statute,  and  the  Court 
or  judge  exercising  it  proceeds  in  a  sum- 
mary metlnod,  or  in  a  new  course  differ- 
ent from  the  common  law,  a  writ  of  error 
does  not  lie,  but  a  certiorari.  Ruhlman  v. 
The  Commonwealth,  v.  24 

3.  Upon   a  certiorari  to  a  justice   of  the 
peace,  this  Court  may  inquire  into  the 
evidence  given  before  him  ;  but  no  parol 
evidence  can  be  heard  upon   a  writ  of 
error  to  the  Common  Pleas  to  remove  a 
judgment  there  rendered  upon  a  certio- 
rari to  a  justice.  Buckmyer  v.  Dubbs,  v.  29 

4.  Upon  a  certiorari  to  remove  proceedings 
in  a  road  cause,  this  Court  will  hear  evi- 
dence to  shew  that  all  the  viewers  at- 
tended the  view,  if  the  record  does  not 
state  the  contrary,  and  no  exception  to 
the  non-attendance  of  any  of  the  viewers 
was   taken    below.     Baltimore    Turnpike 
case,  \.  481 


550 


GENERAL  INDEX. 


CHARTER  PARTY. 

See  AGENT,  8. 

1.  In  an  action  upon  a  charter  party,  the 
charterer  may  recover  not  only  the  dam- 
age he  himself  sustained,  but  also  the 
damage  occasioned  to  goods  belonging 
to   a  person  whom  the  charterer  let  in. 
Meyer  v.  Barker,  vi.  228 

2.  The  holdof  a  ship  was  chartered  by  B  to 
Jl.  B  afterwards  put  coffee  in  the  cabin, 
about  which  a  dispute  arose,  when  C, 
who  was  interested  in  the  charter  with 
A,  purchased  it  of  B,  and  paid  the  cap- 
tain for  his  cabin  privilege.     One  bill  of 
lading  was  given  for  the  whole  cargo, 
both  that  in  the  hold  and  in  the  cabin, 
"  paying  freight  as  per  charter  party-" 
Held,  that  B  was  bound  to  pay  for  the 
coffee  in  the  cabin,  lost  in  consequence  of 
the  unseaworthiness  of  the  ship.    Meyer 
V.  Barker,  vi.  228 

3.  A  charterer  may  recover  from  the  ship 
owner  the  whole   amount   of  the  loss 
caused    by    unseaworthiness,    notwith- 
standing under  writers  have  already  with- 
out dispute  paid  part  of  the  loss;  that  part 
being  recoverable  back  by  the  underwri- 
ters, as  a  payment  by  mistake.  ib. 

CIRCUIT  COURT. 

An  award  of  referees  upon  which  no  judg- 
ment is  rendered,  is  a  cause  remaining 
untried,  within  the  act  of  the  llth  of 
Mar.  1809,  abolishing  the  Circuit  Courts, 
and  is  duly  transferred  to  the  Common 
Pleas  of  the  proper  county,  there  to  be 
determined.  Preston  v.  Englert,  v.  390 

CITIZEN. 
See  NATURALISATION. 

CLERGYMAN. 

A  clergyman,  who  officiates  as  such,  is  not 
bound  to  serve  as  a  guardian  of  the  poor, 
notwithstanding  he  so  far  attends  to  se- 
cular business  as  to  keep  a  store  for  the 
sale  of  merchandize.  Guardians  v.  Greene, 

v.  554 

COMITY. 
See  BAIL,  6.  8,  9. 

COMMISSION. 

A  joint  commission  issued  to  London,  in 
which  the  plaintiffnamed  commissioners, 
whose  profession  and  particular  resi- 
dence he  set  out ;  and  the  defendant 
named  merely  A.  B.  and  C.  D.  "of  Lon~ 
" don"  The  plaintiff's  commissioners 


caused  inquiries  to  be  made  for  those  of 
the  defendant,  and  no  such  persons  being 
found,  they  executed  the  commission  ex 
parte.  Held,  that  the  commission  was  well 
executed.  Pigot  v.  Hollo-way,  i.  436 

COMMISSIONS. 

A  went  as  supercargo  from  Philadelphia  to 
Batavia,  under  an  agreement  with  the 
shippers,  which  so  far  as  respected  his 
compensation  was  thus  :  "  The  commis- 
"sion  which  is  to  be  four  per  cent,  on 
"  the  investment,  is  to  be  paid  in  Bata- 
"  via,  and  invested  on  account  of  Jl.n  A 
died  in  thirty-six  hours  after  his  arrival 
at  Batavia,  without  having  made  any 
investment  of  the  cargo.  Held,  that  he 
was  intitled  to  a  proportionate  compen- 
sation, deducting  from  the  whole  com- 
mission of  four  per  cent,  what  it  would 
cost  the  shippers  to  complete  the  invest- 
ment at  Batavia.  Welsh  v.  Dusar,  iii.  329 

COMMON  BAIL. 

See  INSOLVENT  DEBTOR,  4. 

COMMON  PLEAS. 
See  INSOLVENT  DEBTOR,  7. 

COMPERUIT  AD  DIEM. 
See  BAIL,  1. 

CONCESSIONS  OF  W.  PENN. 

The  concessions  or  conditions  of  William 
Penn,  executed  on  the  llth  of  July  1681, 
are  confined  to  the  first  purchasers,  and 
persons  claiming  under  them.  Carson  v. 
Blazer,  ii.  475 

CONGRESS. 

Under  the  constitutional  power  of  Con- 
gress to  provide  and  maintain  a  navy, 
that  body  may  by  law  authorize  minors 
to  enter  into  contracts  for  service  in  the 
navy,  notwithstanding  such  contracts,  if 
made  by  an  infant,  might  not  be  binding 
upon  him  at  common  law.  Commonwealth 
V.  Murray,  iv.  487 

CONNECTICUT  TITLE. 
1.  A  deed  conveying  land  within  the  seven- 
teen townships  which  has  been  submitted 
according  to  the  provision  of  the  act  of 
4th  April  1799,  and  also  land  lying  out  of 
the  townships,  and  to  which  no  title  was 
recited  to  be  derived  from  the  Common- 
wealth, or  the  proprietaries  before  the 
4th  of  July  1776,  is  good  as  to  the  land 
within  the  townships,  though  bad  as  to 
the  residue.  Irish  v.  Scovill,  vi.  55 


GENERAL  INDEX. 


551 


2.  The  commissioners  under  the  compen- 
sating act  of  4th  April  1799,  and  its  sup- 
plements  of  15th  March  1800,  and  6th 
April  1802,  had  no  jurisdiction  of  the 
application  of  a  Connecticut  claimant  for 
land  within  the  seventeen  townships,  nor 
any  authority  to  issue  a  certificate  in  his 
favour,  unless  he  or  those  under  whom 
he  claimed,  had  been  actually  settled 
and  resident  on  the  land  before  the  de- 
cree  at  Trenton.  Enslin  v.  Bo-toman, 

vi.  462 

3.  The  certificate  of  the  commissioners  in 
favour  of  a  Connecticut  claimant,  stating 
that  he  or  those  under  whom  he  claims, 
were  actually  so  settled  and  resident, 
does  not  conclude  a  Pennsylvania  claim- 
ant.  ib. 

4.  A  Pennsylvania   settler,  whose  title  to 
land   within   the   seventeen  townships, 
arose  subsequent  to  the  28th  March  1787, 
is  entitled  to  hold  against  any  Connecticut 
claimant,  except  one  actually  settled  and 
resident  there  before  the  decree  at  Tren- 
ton, or  one  claiming  under  such  a  settler. 

ib. 

CONSIDERATION. 

See  PLEADING,  10. 

BARGAIN  AND  SALE,  1,  2,  3. 

1.  An  agreement  by  a  surety  to  forbear  a 
suit  against  his  principal,  after  he  shall 
have  paid  the  debt  of  the  principal,  is  a 
good  consideration  to  support  a  promise, 
although  at  the  time  of  the  agreement, 
the  surety  had  no  cause  of  action  against 
the  principal.  Hamaker  v.  Eberly,  ii.  506 

2.  Taking  and  surrendering  a  person  upon 
a  bailpiece,  for  whom  the  plaintiff  was 
bail,  in  consequence  of  which  the   de- 
fendant also  surrendered  him  in  a  suit  in 
which  he  was  bail,  is  a  good  considera- 
tion to  support  a  promise  by  the  defend- 
ant after  the  surrender,  to  pay  a  pro- 
portion of  the    expense   attending    it. 
Greeves  v.  M'Allister,  ii.  591 

3.  Assets  are  a  sufficient  consideration  for 
a  personal  promise  by  one  who  is  execu 
tor,  to  pay  a  legacy,  and  to  charge  him 
de  bonis  propriis.   Clark  v.  Herring,      v.  33 

4.  A  moral  or  equitable  obligation  is  suffi- 
cient consideration  for  an  assumption,  ib. 

CONSPIRACY. 

!.  The  law  implies  damage  from  a  conspi- 
racy to  accuse  a  person  of  an  offence  for 
which  he  is  liable  to  indictment  and  re- 
moval from  office.  Griffith  v.  Ogle,  i.  172 

2.  It  seems,  that  in  an  action  on  the  case 
in  the  nature  of  a  writ  of  conspiracy,  it 


is  not  necessary  to  declare,  that  the 
conspiracy  was  without  probable  cause. 
"  Falsely  and  maliciously"  is  enough. 

i.  172 

CONSTABLE. 
See  TRESPASS,  3. 

A  constable  is  not  bound  to  execute  a  war- 
rant which  has  been  issued  without  an 
oath  to  justify  it,  but  merely  on  common 
rumor  of  the  party's  guilt.  Connor  v.  Com- 
monwealth, iii.  38 

CONSTITUTION. 

See  JUDICIARY. 

JUSTICE  OF  THE  PEACE, 3* 
LIBEL,  1. 
SUPREME  COURT,  3. 

1.  The  courts  of  one  state  have  a  right  to 
decide  upon  the  validity  of  an  act  of  As- 
sembly of  another  state,  in  reference  to 
the  federal  constitution,  wherever  it  is 
essential  to  the  decision  of  a  cause  duly 
brought  before  them.  Stoddart  v.  Smith, 

v.  355 

2.  An  act  of  the  legislature  of  Man/land, 
which  gave  authority  to  the  commission- 
ers of  the  city  of  Washington,  to  make  re- 
sales of  all  lots  the  purchase  money  of 
which   remained  unpaid   for  a  certain 
time  after  it  ought  to  have  been   paid, 
does  not  impair  a  contract   previously 
made  by  the  commissioners  for  the  sale 
of  those  lots,  but  merely  gives  a  new  re- 
medy. It  is  therefore  not  unconstitutional 
for  such  a  cause.  ib. 

CONSUL. 
See  JURISDICTION,  1. 

CONTRACT. 

See  EVIDENCE,  66. 
LOTTERY. 

1.  A  contract  for  the  purchase  of  forty-five 
lots  in  different  parts  of  a  city,  is  not  dis- 
solved by  failure  of  a  title  to  a  part  of 
them  j  the  vendee  can  claim  only  a  de- 
duction from  the  price.  But  where  a  part 
is  so  essential,  that  the  loss  of  it  renders 
the  rest  of  little  value,  as  a  mine  or  valu- 
able  fishery  appurtenant  to   very    pool- 
land,  or  the  right  of  water  necessary  for 
turning  a  mill,  the  failure  of  title  to  such 
a  part,  dissolves  th.e   contract  for  the 
whole.  Stoddart  v.  Smith,  v.  355 

2.  A  requested  B  to  give  C  any  assistance 
in  the   purchase  of  goods  by   letter  or 
otherwise,   saying    "  you  may   consider 
"  me  accountable  viilh  him  to  you,  for 


552 


GENERAL  INDEX. 


"  any  contract  he  may  make  "  Held,  that 
a  contract  by  C  to  pay  B  a  premium  for 
guaranteeing  a  contract  by  Cwith  a  third 
person,  was  within  A**  promise,  but  that 
it  did  not  make  Jl  a  joint  debtor  with  Cto 
B.  Meade  v.  JWDwell,  v.  195 

CONVEYANCE. 

It  is  no  objection  to  a  conveyance  of  land 

in  Pennsylvania,  that  the  grantor  was  out 

of  possession  at  the  time.  Stoever  v.  Lessee 

of  Whitman,  vi.  416 

CONVICTION. 

A  writ  of  error  does  not  lie  to  the  judg- 
ment of  the  Quarter  Sessions,  upon  an 
appeal  by  supervisors  of  roads  from  a 
summary  .conviction  by  a  justice  of  the 
peace ;  the  proceedings  in  such  cases 
not  being  according  to  the  course  of  the 
common  law.  Ruhlman  v.  The  Common- 
wealth, v.  24 

COPY. 

See  EVIDENCE,  7.  28.  32.  44,  45.  53,  54. 58. 

CORONER. 

See  EVIDENCE,  45. 

1.  The  official  bond  of  a  coroner  may  be 
given  in  evidence  in  a  suit  against  him 
and  his  sureties,  although  not  recorded 
according  to  law  in  the  office  for  record- 
ing deeds.     Giving  the  bond,  and  acting 
in  the  office  are  prima  facie  evidence  that 
the  sureties  have  been  approved  by  the 
judges  of  the  Common  Pleas.    Toung  v. 
Commonwealth,  vi.  88. 

2.  The  return  of  a  writ  by  a  coroner,  is  evi- 
dence that  a  commission  issued  to  him. 

ib. 

3.  Unless  a  recognizance  is  given  by  a  co- 
roner, his  commission  and  all  acts  under 
it  are  void,  and  there  can  be  no  recovery 
on  his  official  bond.  ib. 

CORPORATION. 

See  ARBITRATION,  3. 

1.  Without  an  express  power  in  the  charter, 
a  corporator  cannot  be  disfranchised,  un- 
less he  has  been  guilty  of  some  offence, 
which  either  affects  the  interests  or  good 
government  of  the  corporal  on,  or  is  in- 
dictable by  the  law  of  the  land.  The  Com- 
monwealth v.  The  St.  Patrick  Bentvolent 
Society,  ii.  441 

.  The  articles  of  a  corporation  authorized 
the  expulsion  of  a  member  for  being  con- 
cerned in  scandalous  or  improper  pro- 


ceedings, which  might  injure  the  repu- 
tation of  the  society.  Held  to  be  good 
cause  of  expulsion,  that  a  member  claim- 
ing relief  from  the  Society,  had  altered 
a  physician's  bill  from  four  dollars  to 
forty,  and  had  presented  that  bill  to  the 
corporation  as  the  ground  of  his  claim. 
The  Commonwealth  v.  The  Philanthropic 
Society,  v.  486 

COSTS. 
See  AMENDMENT,  1. 

1.  Witnesses  subpoenaed  though  not  exam- 
ined, and  examined  though  not  subpoena- 
ed, are  entitled  to  payment.  Debenneville 
v.  Debenneville.  i  46 

2.  An  award  of  costs  is  good,  although  the 
principal  sum  reported  by  the  referees, 
would  not  carry  costs  if  found  by  a  j  ary. 
M'Laughtin  v  Scott,  i.  61 

3.  If  the  plaintiff  levies  by  execution  costs 
to  which  he  is  not  entitled,  the  court  will 
compei.him  by  rule  to  refund  them,  even 
after  they  have  been  distributed  by  the 
sheriff.  Harris  v.  Fortune,  i.  125 

4.  If  a  suit  has  been  carried  on  for  the  use 
of  an  assignee,  the  nominal  plaintiff  be* 
ing  insolvent,  the  court  will  permit  the 
defendant  after  verdict,  to  suggest  upon 
the  docket  the  name  of  the  assignee,  and 
will  rule  him  to  pay  the  costs.     Canby  v. 
Ridgiuay,  i-  496 

5.  In  an  action  of  debt  discontinued  after 
the  first  court  upon  the  defendant's  agree- 
ing to  pay  costs,  the  plaintiff's  attorney 
is  entitled  to  the  fee  due  in  actions  end- 
ed after  the  first  court,  and  before  judg- 
ment, notwithstanding  the  5th  section  of 
the  act  of  March  21st,  1806.     Delaware 
Insurance  Company  v.  Gilpin,  i.  501 

6.  Jurors  not  drawn  by  lot  for  the  court  at 
which  the  issue  is  tried,  but  drawn  upon 
a  former  occasion,  and  continued  over, 
are  not  entitled  to  pay  from  the  county, 
but  from  the  losing  party.  Sherer  v.  Hodg- 
son, i  535 

7.  The  expense  of  a  view  is  not  chargeable 
to  the  county,  but  must  be  paid  by  the 
losing  party.  i.  535 

3.  Referees  under  the  act  of  1705  cannot 
award  costs  of  suit  in  the  Common  Pleas, 
upon  a  sum,  which  by  the  laws  giving 
jurisdiction  to  justices  of  the  peace,  will 
not  carry  costs,  unless  there  is  an  agree- 
ment in  the  rule  that  they  shall  have 
power  over  the  costs,  or  the  plaintiff  had 
made  an  affidavit  before  the  suit,  that  he 
believed  the  debt  was  beyond  the  sum 
within  a  magistrate's  jurisdiction.  Guier 
v.  MFaden,  ii.  587 


GENERAL  INDEX. 


553 


9.  If  referees  in  an  action  of  slander  award 
to  the  plain  tiff  a  sum  under  forty  shillings 
•with  cosis,  he  is  intitled  to  no  moi  e  costs 
than  damages.     Secus  if  they  award  full 
costs.    Although  the  Court  is  bound  by 
the  statute,  the  jury  is  not,  and  they  may 
give  ten  pounds  costs  though  they  give 
only  six  pence  damages.     Stuart  v.  Hur- 
kins,  iii.  321 

10.  Costs  of  double  the  number  of  witness- 
es sworn,  allowed  under  special  circum- 
stances,  provided  the    counsel    in   the 
cause  would  name  so  many,  who  in  their 
opinion  were  material.   Commonwealth  v. 
Wood,  iii-  414 

11.  After  an  appeal  to  the  Common  Pleas 
from  the  judgment  of  a  justice  for  forty- 
eight  dollars   and  thirty-six  cents,  the 
cause  was  referred  to  arbitrators,  who 
awarded  twenty  dollars  with   costs  of 
suit.  Held,  that  where  an  act  of  assembly 
says  a  party  shall  not  recover  costs,  nei- 
ther ajury  nor  arbitrators  can  give  them, 
and  therefore  that  the  judgment  in  this 
case  was  erroneous.  Lev/is  v.  England, 

iv.  5 

12.  Statutes  giving  costs,  being  considered 
as  penal  in  their  nature,  are  always  con- 
strued strictly.  iv.  13 

13.  Notwithstanding  an  indictment  for  for- 
cible entry  and  detainer  is  so  defective, 
that  in  point  of  law  it  does  not  set  ou,t  any 
offence  by  the  defendants,  yet  in  case  of 
acquittal,  the  jury  may  make  the  prose- 
cutor pay  the  costs.     Common-wealth  v. 
Harkness,  iv.  194 

14.  Where  a  judgment  is  reversed,  this 
Court  gives  no  costs ;  and  if  levied  by 
execution,  will  order  the  different  offi- 
cers to  refund  them.    Wright  v.  Lessee  of 
Small,  v.  204 

15.  If  a  defendant  appeals  from  an  award  in 
the  Common  Pleas  for  less  than  a  hun- 
dred dollars,  and  the  same  or  a  greater 
sum  is  recovered  on  the  appeal,  he  is  lia- 
ble for  the  costs  of  the  appeal  ;  but  not 
for  any  costs  before  the  appeal.  Ilgenfritz 
v.  Douglass,  vi.  402 

COVENANT. 
See  AGREEMENT,  9. 

1.  A  covenant  by  two  tenants  in  common 
to  pay  the  rent  reserved  by  the  landlord, 
is  a  joint  covenant,  notwithstanding  their 
several  interests  in  the  land.    Phillips  v. 
Bonsall,  \\.  138 

2.  Where  a  covenant  goes  only  to  part  of 
the  consideration  on  both  sides,  and  a 
breach  may  be  compensated  by  damages, 
it  is  an  independent  covenant,  and  an  ac- 

Voi..  VI. 


tion  mav  be  maintained  against  the  de- 
fendant for  a  breach  of  his  covenant, 
without  averring  performance  :  There- 
fore, where  A  by  articles  of  agreement 
leased  a  mill  &.c.  to  fl,  for  four  years,  in 
consideration  of  an  annual  rent  which  B 
covenanted  to  pay,  and  A  by  the  same 
articles  covenanted  to  build  a  house  of 
particular  dimensions  and  quality,  adjoin- 
ing the  mill -house,  before  a  certain  day 
after  the  commencement  of  the  lease,  and 
to  make  certain  improvements  in  the  mill; 
and  the  defendant  entered  and  used  the 
mill  &c.  Held,  that  in  an  action  upon  the 
covenant  to  pay  the  rent,  it  was  not  ne- 
cessary to  aver  or  prove  performance  of 
the  covenant  to  build,  and  improve  ,  and 
that  if  the  landlord  omitted  to  perform 
the  covenants  according  to  their  mean- 
ing, the  jury  might  deduct  an  equivalent 
from  the  rent.  Obermyer  v.  Nichols, 

vi.  159 

COUNTY  COMMISSIONERS. 

See  APPOINTMENT. 
AUDITORS. 

COURT. 

See  ORPHANS'  COURT. 
SUPREME  COURT. 
MAYOR'S  COURT. 
QUARTER  SESSIONS. 
WRITTEN  INSTRUMENT. 

1.  A  militia  court  of  appeals,  which  bylaw 
is  composed  of  three  commissioned  officers 
appointed  by  the  commanding  officer  of  the 
regiment,  is  not  a  court  of  record,  as  it  has 
not  the  power  to  fine  and  imprison,  but 
merely  to  remit  fines  for  certain  causes. 
Before  its  proceedings  can  be  read  in 
evidence,  in  an  action  of  trespass  against 
a  captain  who  justifies  under  its  sentence, 
it  must  therefore  be  shewn   that   the 
court  was  regularly  constituted,  which 
can  only  be  done  by  producing  the  com- 
mission of  the  commanding  officer  of  the 
regiment,  and  the  commissions  of  the 
officers  composing  the  court,  by  shewing 
their  appointment,  and  that  in  all  mate- 
rial respects  they  have  complied  with  the 
law.  Wilson  v.  John,  ii.  209 

2.  Quaere,  whether  the  Supreme  Court  can 
upon  an  appeal  from  the  Circuit  Court, 
hear  any  evidence  which  was  not  before 
the  Circuit  Court.     Lessee  of  Elaine  v. 
Johnson,  iii.  103 

3.  The  jurisdiction  of  a  foreign  court  may 
be  examined,  not  only  as  to  the  authority 
under  which  it  is  erected,  but  as  to  the 
subject  over  which  it  is  exercised ;  but  if 
the  court  is  duly  constituted,  and  has 

4A 


554 


GENERAL  INDEX. 


jurisdiction  over  the  subject,  its  decrees 
in  rem  cannot  be  revised  by  the  court  of 
another  nation.  Cheriot  v.  Foussat,  iii.  220 

4.  The  decree  of  a  foreign  prize  tribunal  of 
general   jurisdiction,  condemning  pro- 
perty for  having  been  concerned  in  the 
violation  of  law,  is  conclusive  upon  the 
point  that  the  seizure  of  the  property 
was  made  in  conformity  with  the  law.it 
being  a  matter  within  their  jurisdiction 
to  decide.  ibid. 

5.  Every  court  of  record  has  an  inherent 
power  to  make  rules  for  the  transaction 
of  its  business,  not  contradictory  to  the 
law  of  the  land.    Under  this  power,  the 
Common  Pleas  have  a  right  to  make  a 
rule  that  the  party  appealing  from  the 
award  of  arbitrators,  shall  give  his  oppo- 
nent notice  of  the  time  and  place  of  enter- 
ing the  appeal,  and  the  name  of  his  sure- 
ty, although  the  act  of  assembly  does  not 
require  it.  Barry  v.  Randolph,       iii.  277 

6.  When  a  court  has  jurisdiction  of  the  ac- 
tion, its  officers  are  not  responsible  for 
errors  in  the  process.   Heeker  v  Jarret, 

iii.  404 

7.  Under  the  general  power  of  the  Common 
Pleas  to  regulate  its  practice,  it  has  au- 
thority to  require  from  defendants,  an 
affidavit  of  defence.  Vanatta  v.  Anderson, 

iii.  417 

8.  Where  an  account  stated,  deed,  or  docu- 
ment, is  offered  in  evidence  to  the  jury, 
the  Court  may  either  decide  themselves 
that  it  is  or  is  not  sufficiently  proved,  and 
admit  or  reject  it  accordingly,  or  they 
may  refer  the  evidence  to  the  jury,  in- 
structing them  to  disregard  the  deed  &c. 
unless  they  are  satisfied  with  the  proof 
of  its  execution.  Commissioners  of  Berks  v. 
Ross,  iii.  539 

9.  A  court  acting  under  the  authority  of 
those  in  whom  the  power  of  the  country 
is  for  the  time  being  vested,  must  be 
deemed  to  have  the  jurisdiction  of  a  le- 
gitimate court.  It  is  sufficient  that  it  is  a 
court  de  facto.    Bank  of  North  America  v. 
M'Call,  iv.371 

10.  The  court  cannot  be  called  upon  to 
charge  the  jury  that  either  party  has 
proved  certain  facts  which  are  sufficient 
to  make  out  his  claim  or  defence  ;  be- 
cause the  court  has  no  right  to  charge 
the  jury  that  the  facts  are  proved.  Zerger 
v.  Sailer,  vi.  24 

11.  It  is  matter  of  law  what  circumstances 
will  justify  the  presumption  of  a  deed, 
and  it  is  the  court's  duty  to  give  an  opi- 
nion, whether  the  facts  proved  will  jus- 
tify the  presumption.  Stoever  v.  Lessee  of 
Whitman,  vi.  416 


COURT  MARTIAL. 

See  WARRANT,  3. 

Bail  refused  in  an  action  of  trespass  against 
the  officers  of  a  court  martial  for  impri- 
soning the  plaintiff;  it  not  appearing  that 
they  had  exercised  their  power,  whether 
legally  or  illegally  assumed,  with  oppres- 
sion. Dujfield  v.  Smit h,  vi.302 

CREDITORS. 

See  ASSIGNMENT. 

Though  a  bond,  given  for  a  larger  sum 
than  is  due,  for  the  purpose  of  defraud- 
ing creditors,  is  wholly  void  against  cre- 
ditors, yet  if  creditors  are  permitted  to 
take  defence  as  to  the  quantum  due,  upon 
the  plea  of  payment,  the  obligee  is  enti- 
tled to  a  verdict  for  the  sum  due,  though 
the  plea  of  payment  in  form  goes  to  the 
whole.  Numan  v.  Kapp,  v.  73 

CUSTOM. 

1.  ^iiaere,  whether  a  custom  that  the  own- 
ers of  the  banks  of  the  Susquehanna  shall 
have  an  exclusive  fishery  in  the  river 
opposite  to  their  shores,  is  good  ?  Carson 
v.  Blazer  and  others,  ii.  475 

2.  Evidence  of   a  custom  in  a  particular 
place  to  enter  for  breach  of  a  condition 
in  a  ground  rent  deed,  in  a  manner  dif- 
ferent from  that  authorised  by  the  rules 
of  the  common  law,  or  the  terms  of  the 
deed,  is  inadmissible .  Stoever  v.  Lessee  of 
Whitman^  vi.  416 

CUSTOMHOUSE  BONDS. 
See  BANKRUPT,  2. 

CURTESY. 

The  curtesy  estate  of  the  husband  in  the 
lands  of  the  wife  is  not  forfeited  to  the 
Commonwealth  for  the  life  of  the  hus- 
band by  his  attainder  for  treason  commit- 
ted in  her  lifetime  and  after  issue  born  ; 
but  the  wife's  estate  is  discharged  from 
the  curtesy.  Lessee  ofPemberton  v.  Hicks, 

i.  1 

DAMAGE. 
See  NUISANCE,  1,  2. 

1.  The  law  implies  damage  from  a  conspi- 
racy to  accuse  a  person  of  an  offence  for 
which  he  is  liable  to  indictment  and  re- 
moval from  office.  Griffith  v.  Ogle,  i-  172 

2.  ^u-  Whether  being  refused  admission 
into  a  church  presbytery,  is  such  special 
damage  as  the  law  will  take  notice  of. 
McMillan  v.  Birch,  \.  ITS 


GENERAL  INDEX. 


555 


3.  To  support  an  action  on  the  case  for  da- 
mage occasioned  by  a  common  nuisance, 
it  is  immaterial  whether  the  damage  be 
immediate  or  consequential.  Hughes  v. 
Reiser,  \.  463 

DAMAGES. 

See  PLEADING,  9. 

In  actions  sounding  merely  in  damages,  the 
•rule  is  that  the  plaintiff  cannot  recover 
more  than  the  damages  laid  in  the  decla- 
ration ;  but  this  rule  is  not  applicable  to 
account  render,  in  which  the  main  object 
of  the  action  is  to  obtain  an  account,  and 
judgment  for  the  arrearages,  and  in  which 
damages  are  given  only  rationi  interplaci- 
tationis.  A  plaintiff  in  account  render  may 
therefore  have  judgment  for  the  arrear- 
ages to  a  greater  amount  than  the  da- 
mages laid  in  the  declaration. '  Gratz  v. 
PUUips,  v.  564 

DEBT. 

A  deposited  in  the  hands  of  B  at  different 
times,  for  a  purpose  which  he  said  he  had 
mentioned  to  Bt  10,000  dollars,  for  which 
he  refused  to  take  receipts.  At  the  same 
time  he  had  various  dealings  with  B,  and 
paid  him  money  for  which  receipts  were 
taken.  A,  who  had  been  brought  up  in 
Jfs  store,  and  assisted  by  him  in  busi- 
ness, often  expressed  his  gratitude,  said 
that  he  owed  B  every  thing,  and  that  in 
case  of  his  death,  B  or  his  family  should 
not  lose  by  it.  Being  in  ill  health,  he  was 
pressed  to  make  a  will ;  but  replied,  "  B 
(or  his  family)  should  be  secured  whether  or 
not."  At  another  time  he  said  he  would 
leave  8000  dollars  to  one  of  B's  children. 
At  a  third  time  he  said  that  he  was 
worth  20,000  dollars,  that  half  of  it  was 
enough  for  him  to  trade  on,  and  that  he 
had  placed,  or  meant  shortly  to  place, 
the  remainder  in  &s  hands,  for  the 
proofs  of  his  friendship  on  opening  store 
&c.  and  would  leave  what  he  died  pos- 
sessed of  to  B's  family.  After  Jfs  death  a 
paper  was  found  in  his  pocket  book  with 
his  signature  in  these  words:  "  I  acknow- 
"  ledge  to  be  indebted  to  B  in  the  sum 
"  of  8060  dollars,  value  received  of  him. 
"  Philadelphia,  JunelS,  1805."  This  date 
was  about  the  time  of  his  saying  that  B 
should  be  secured  whether  or  not.  Held, 
that  under  the  circumstances  of  the  case, 
this  writing  should  be  considered  as  evi- 
dence of  a  debt  due  by  A  to  B  /  and  that 
tt,  who  took  out  administration  to  A, 
might  retain  the  amount  as  in  case  of  a 
debt.  But  that  it  was  not  a  testament, 
and  if  it  was,  it  must  be  proved  in  the 
Register's  Office,  before  this  Court  could 
give  it  effect.  Toner  v.  Taggart,  v.  490 


DEBTS. 

See  SPECIALTY.  SET-OFF,  1. 
Debts  due  by  a  deceased  person  take  rank 
according  to  their  quality  at  the  time  of 
his  death.  Scott  v.  Ramsay,  i.  221 

DEED. 

See  ASSIGNMENT. 

BARGAIN  AND  SALE. 
BARON  AND  FEME,  3.5.  8,  9. 
EVIDENCE,  4.  41.  43.  50.  54,  55,  56. 

60,  61.  65. 
NOTICE,  1,2,3,4.  7. 

1.  Where  a  deed  has  been  acknowledged 
before  a  magistrate,  in  order  that  it  n»ay 
be  recorded,  the  parties  have  no  right  to 
make  the  most  trifling  alteration  in  it. 
Moore  v.  Lessee  of  Bickham,  iv.  1 

2.  A  deed  of  bargain  and  sale  containing  a 
blank  for  the  consideration,  is  not  valid. 

ib. 

3.  A  deed  made  to  defeat  and  defraud  cre- 
ditors, is  void  as  against  creditors  ;  but 
not  so  against  the  grantor  himself,  or  his 
children.  Reichart  v.  Castator,        v.  109 

DEFALCATION. 

See  SET-OFF. 

Notice  of  an  account  or  debt  intended  to 
be  defulked,  is  not  necessary  where  the 
defalcation  has  been  pleaded  specially. 
Commissioners  of  Berks  Co.  v,  Ross,  iii.  539 

DEMURRER. 

A  variance  between  the  declaration  and 
the  bond  of  which  Oyer  is  given,  is  mat- 
ter of  demurrer,  but  not  of  error.  Dou- 
glass v.  Beam,  ii.  76 

DEMURRER  TO  EVIDENCE. 

Upon  a  demurrer  to  evidence,  every  fact 

which  a  jury  might  fairly  infer,  is  to  be 

inferred  by  the  Court.  Snotoden  v.  Phoenix 

Insurance  Company,  iii.  457 

DEPOSITIONS. 

1.  A  leading  interrogatory  must  be  object- 
ed to  at  the  time  it  is  put  to  the  witness. 
If  no  exception  is  then  taken  by  the  oppo- 
site party,  the  answer  of  the  witness  to 
the  leading  question  cannot  be  opposed 
upon  that  ground,  when  his  deposition 
is  read  upon  the  trial  Sheeler  v  Speer, 

iii  130 

2.  Notice  of  the  time  and  place  of  taking 
depositions  under  a  rule  of  court,  should 
have    convenient  certainty.      The  bare 
mention  of  a  house  in  a  certain  county 


556 


GENERAL  INDEX. 


is  too  vague,  unless  it  is  a  place  of  public 
notoriety.  Sheeler  v.  Sfieer,  iii.  130 

3.  A  deposition  taken  before  a  person  who 
is  actually  a  justice  of  the  peace,  though 
he  is  not  so  described  in  the  writing,  is 
good.  Commissioners  of  Berks  Co.  v.  Ross, 

iii.  539 

4.  Notice  to  take  depositions  at  the  house 
of——  Springier,  inn-keeper  in  York,  on 
the  27th  of  the  present  month  of  Decem- 
ber, between  the  hours  often  A.  M.  and 
seven  P.  M.,  though  the  notice  has  no 
date,   does    not  contain   Spangler's  Jlrst 
name,    and  was  served  only  on  one  of 
three  defendants  in  ejectment,  is  good 
so  as  to  authorize  reading  a  deposition 
taken  at  five  P.  M.  on  the  27th  at  the 
house   of  Samuel  Spongier;    the  notice 
having  been  served  on  the  2d  of  Decem- 
ber, and  there  being  no  proof  that  either 
of  the  defendants  attended  at  the  house 
of  any  Spongier  in  York,  on  any  hour  of 
that  day.  Lessee  of  Stueitzer  v.  Meese, 

vi.  500 

DEPUTY  SURVEYOR. 

See  SURVEYOR. 

DESCENT. 
See  ALIEN,  3. 

DEVISE. 

1.  A  testator  devises  to  his  wife  during  her 
widowhood,  the  front  room  in  his  farm 
house,  a  cellar,  and  the  common  use  of 
the  kitchen,  oven  and  draw-well.  He  also 
gives  her,  in  consideration  of  her  school- 
ing arid  educating  the  children,  the  pro- 
fits of  his  farm  until  his  sons  come  of  age 
to  possess  it.  He  then  orders  his  farm  to 
be  divided  into  two  parts,  one  of  which 
he  give's  to  one  son,  reserving  a  privi- 
lege of  water  for  the  other  part,  which 
he  gives  to  another  son,  upon  their  re- 
spectively coming  of  age,  and  orders  the 
son  who  takes  a  certain  part,  to  keep  a 
horse  and  cow  for  his  mother,  and  to  cut 
and  to  lay  fire-wood  at  her  door  during 
her  widowhood.     Held,  that  the  devises 
are  not  in  bar  of  dower  in  the  farm.  Webb 
v.  Evans,  i.  565 

2.  -A  devises  all  his  real  estate  to  his  son  B 
and  his  heirs  lawfully  begotten  ;  and  in 
case  of  his  death  without  such  issue,  he 
orders  C  his  executors  and  administra- 
tors to  sell  the  real  estate  within  two 
years  after  the  son's  death  ;  and  he  be- 
queaths the  proceeds  thereof  to  his  bro- 
thers and  sisters  by  name  and  their  heirs 
for  ever,  or  such  of  them  as  shall  be  living 
at  the  death  of  the  son,  to  be  divided  be- 


tween them  in  equal  proportions,  share 
and  share  alike.  All  the  brothers  and  sis- 
ters die  leaving  issue,  then  C  dies,  and 
afterwards  B  the  son  without  issue. 
Heirs  is  a  word  of  limitation  ;  and  none 
of  the  brothers  and  sisters  being  alive  at 
the  death  of  B  the  object  of  the  power 
to  sell  has  failed,  their  issue  are  not  en- 
titled, and  a  sale  by  the  executors  of  C 
conveys  no  title.  Lessee  of  Smith  v. 
Fohuell,  i.  546 

3.  The  testator  "  as  for  such  worldly  estate 
"  wherewith  it  had  pleased  God  to  bless 
"  him,"  bequeathed  the  same  in  part  as 
follows :  "  To  his  wife  one  half  of  his 
"plantation  during  her  natural  life;  to  his 
"  nephew    Seth   two-thirds  of  his  plan- 
"  tation,  excepting  what  was  above  to  his 
"  wife  already  willed;  also  to  his  nephew 
"  Robert  one  third  of  his  plantation,  ex- 
"cepting  what  was  above  willed  to  his 
"wife."    Held  that  the  nephews  took  a 

fee-simple  in  the  plantation,  subject  to  the 
life  estate  of  the  wife  in  a  moiety.  French 
v.  M'llhenny,  ii.  13 

4.  The  testator,  after  beginning  his  will 
"  as  touching  such  worldly  estate,  &c." 
devised  to  his  son  W  seventy  acres  of 
land,   and  concluded    the    devise  with 
these  words :    "  if  the  said  W  should 
"  chance  to  die  without  heir  or  issue,  the 
"  above  said  lands  must  fall  into  the  pos- 
"  session  of  his  brother  R."   He  then  de- 
vised certain  chattels  to  W  and  ordered 
him  to  pay  40/.  to  his  sister,  in  four 
annual  instalments  ;  after  which  he  de- 
vised the  remainder  of  his  plantation  to 
his  son  R  in  the  same  manner  as  he  had 
before  devised  .to  W.    W  took  an  estate 
tail  with  a  contingent  remainder  to  R 
upon  the  event  of  W'a  dying  without  is- 
sue in  the  lifetime  of  R.   Lessee  of  Willis 
v.  Bucher,  ii.  455 

5.  Where  the  payment  of  a  sum  in  gross  is 
annexed  to  a  devise  of  land  in  general 
terms  without  expressing  any  estate,  the 
devisee  takes  a  fee  ;  but  where  the  estate 
of  the  devisee  is  plainly  indicated,  a  di- 
rection to  make  such  a  payment  has  no 
effect  to  alter  the  estate.  ii.  455 

6.  The  testator  devised  his  plantation  to  his 
son  .Fand  his  heirs  and  assigns  for  ever, 
subject  to  the  payment  of  a  sum  of  mo- 
ney, which  he  ordered  F  to  pay  by  in- 
stalments to  his  other  son  P.     He  also 
gave  F  certain  horses,  cows,  &c.,  and 
then   ordered  that  in   case  his   son   F 
should  die  under  the  lawful  age  of  twen- 
ty-one years,  or  without  lawful  issue,  his 
share  in  the  testator's  whole  estate  should 
go  to  P,  his  heirs  and  assigns  ;  and  if  P 
died  under  the  lawful  age  of  twenty -one 


GENERAL  INDEX. 


557 


or  without  issue,  his  share  should  go  to 
F,  his  heirs  and  assigns  ;  and  in  either 
case  the  survivor  of  his  said  two  sons 
should  then  pay  500/.  to  the  testator's 
daughter  or  her  heirs.  By  a  codicil  he 
ordered  F  not  to  sell  any  part  of  the  land 
before  he  was  thirty,  when  he  might  do 
with  it  as  he  pleased.  Held  that  F  took  a 
fee,  with  an  executory  devise  to  P  to 
take  effect  upon  F's  dying  under  age  and 
without  issue  ;  and  F  having  attained 
twenty-one  and  then  died  without  issue, 
the  estate  descended  to  F's  heir  at  law. 
lessee  of  ff aiier  v.  Sheet z,  ii.  532 

7.  A  devise  to  A  during  his  natural  life, 
and  "  after  his  decease,  if  he  shall  die 
"  leaving   lawful    issue,    to  his    heirs  as 
"  tenants  in  common,  and  their  respective 
"  heirs  and  assigns  for  ever,  but  in  case  he 
"  shall  die  without  leaving  lawful  issue, 
"  then  to  B"  the  brother  of Jl,  is  only  an 
estate  for  life  in  Jl,     Lessee  of  Findiay  \. 
Piddle,  iii.  139 

8.  A  devise  to  Jl,  "  and  his  lawful  begotten 
"  heir  for  ever"  is   an  estate  tail  in  Jl. 
Lessee  of  Hall  v.  Vandegrifl,  iii.  374 

9.  The  testator  devised  "  unto  S.  E.  the 

'granddaughter  of  his  sister,  and  to  her 
'  children,  the  plantation  they  then  lived 
1  upon,  for  the  use  of  her  the  said  S.  E 
'  during  her  life,  and  immediately  after 
'  her  decease,  to  be  equally  divided 
"  among  the  surviving  children  of  her 
"  the  said  S-  E."  He  gave  a  legacy  of 
IQl.  to  the  heir  at  law,  and  40/.  to  each 
of  the  children  of  the  heir.  Held,  that 
the  children  of  S.  E.  took  but  an  estate 
for  life.  Clayton  v.  Clayton,  iii.  476 

10.  The  testatrix  gave  to  her  grandson  H 
her  "  plantation,  with  the  appurtenances, 
"  to  hold  to  his  heirs  and  assigns  forever, 
"  to  be  entered  upon  and  taken  possession 
"  by  him  as  soon  as  he  arrives  at  the  age 
"  of  twenty-one  years,  or  the  day  of  his 
"  marriage,  which  shall  first  happen  ;" 
directing  that    "  if  he  shall  die  under 
"  age,  or  without  issue,  his  estate  shall 
"descend  to  his  next  brother  and  his 
"heirs;  but  if  lie  leaves  no  brother,  then 
"  to  his  sisters  and  their  heirs,  share  and 
"share  alike."  //entered  into  possession 
and  died  seised,  of  full  age,  but  unmar- 
ried, and  -without  issue.   Held  that  H  took 
an  estate  in  fee  simple,  with  a  good  exe- 
cutory devise  over,  in  case  of  his  death 
under  age  and  without  issue ;  and  that  on 
his  attaining  the  age  of  twenty-one,  his 
estate  became  indefeasible,  and  on  his 
death    descended     according     to    law. 
Holmes  v.  Lessee  of  Holmes,  v.  252 

11.  When  the  words  of  a  will  indicate  an 
intention  to  pass  the  whole  interest  of 


the  devisor,  the  devisee  will  take  a  fee, 
if  that  was  the  devisor's  estate  ;  other- 
wise if  the  words  only  describe  the  ob- 
ject devised  ;  the  devisee  will  then  take 
for  life.  Therefore  "  I  give  and  devise 
"  to  Jl  all  my  real  and  personal  property,' 
passes  a  fee  in  reality.  Morrison  v. 
Semplt,  vi.  94 

DISCONTINUANCE. 

After  an  inquest  has  returned  that  the 
rents  and  profits  will  pay  in  seven  years, 
the  plaintiff  cannot  discontinue  his_/J  fa. 
and  take  out  a  new  one,  without  leave  of 
the  court.  M'Culloughv.  Guetner,  i.  214 

DISFRANCHISEMENT. 

Without  an  express  power  in  the  charter, 
a  corporator  cannot  be  disfranchised,  un- 
less he  has  been  guilty  of  some  offence, 
which  either  affects  the  interests  or  good 
government  of  the  corporation,  or  is  in- 
dictable by  the  law  of  the  land.  The 
Commonwealth  v.  The  St.  Patrick  Benevo- 
lent Society,  \\.  441 

DISTRESS. 

If  a  man  distrain  for  rent,  he  must  distrain 
for  the  precise  sum  due  ;  he  cannot  add 
interest  to  the  arrears  of  rent.  Bc.ntleon 
v.  Smith,  ii.  153 

DIVORCE. 
See  ALIMONY. 

The  proceedings  in  cases  of  divorce,  not 
being  according  to  the  course  of  the 
common  law,  a  writ  of  error  does  not  lie 
to  the  final  sentence  of  the  Common 
Pleas  therein,  but  merely  an  appeal. 
Miller  v.  Miller,  iii.  30 

DOMESTIC  ATTACHMENT. 
See  ATTACHMENT  DOMESTIC. 

DOMICIL. 

1.  A  will  of  personal  property  must  be  ex- 
ecuted according  to  the  law  of  the  tes 
tator's  domicil  at  the  time  of  his  death. 
If  it  is  void  by  that  law,  it  will  not  pass 
personal   property  in   a  foreign  country, 
although  it  is  executed  with  all  the  for- 
mality  prescribed   by  the    law  of  that 
country.     Desesbats  v.  Jierquier,        i.  336 

2.  A  man  is  prima  facie  domiciled  at  the 
place  where  lie  is  resident  at  the  time  of 
his  death.    Guier  v.  O' Daniel,  \.  351 

3.  Domicil  is  a  residence  at  a  particular 
place  accompanied  with  an  intention  to 
continue  it  an  unlimited  time.          i.  352 


GENERAL  INDEX. 


4.  A  minor  during  pupilage  cannot  acquire 
a  domicil  of  his  own  ;  his  domicil  there- 
fore follows  that  of  his  father,  and  re- 
mains until  he  acquires  another,  which 
he  cannot  do  until  he  becomes  a  person 
sta  juris.  i.  352 

DONATIO  CAUSA  MORTIS. 

1.  The  delivery  of  a  bond  or  personal  chat- 
tel by  the  owner  in  his  last  illness  to  his 
wife,  for  the  use  of  a  third  person,  is  a 
sufficient  delivery  to  make  it  a  good  do- 
natio  causa  mortis.     Wdls  v.  Tucker, 

iii.  366 

2.  The  widow  is  a  good  witness  to  prove  a 
don  at  10  causa  mortis  by  her  deceased  hus- 
band. ibid. 

3.  A  bond  is  a  proper  subject  of  a  donatio 
causa  mortis.  ibid. 

4k.  It  seems  that  a  donatio  causa  mortis  is  not 
only  conditional,  to  be  void  if  the  donor 
recovers,  but  it  is  also  revocable  by  him, 
being  in  the  nature  of  a  legacy.  ibid. 

DONATION  LAND. 

The  widow  of  an  officer  or  soldier  in  the 
Pennsylvania  line,  who  was  slain  in  bat- 
tle, or  died  in  the  service,  without  leav- 
ing a  child  or  children,  is  intitled  to  do- 
nation land,  according  to  the  pay  and 
rank  of  her  husband,  absolutely  in  fee 
simple,  and  not  in  trust  for  the  heirs  of 
her  husband  after  her  death.  Heyl  v. 
Mitchell,  iv.  89 

DOWER. 

1.  A  testator  devises  to  his  wife,  during  her 
widowhood,  the  front  room  in  his  farm 
house,  a  cellar,  and  the  common  use  of 
the  kitchen,  oven  and  draw  well;  he  also 
gives  her,  in  consideration  of  her  school- 
ing and  well  educating  the  children,  the 
profits  of  his  farm  until  his  sons  come  of 
age  to  possess  it.  He  then  orders  his 
farm  to  be  divided  into  two  parts,  one  of 
which  he  gives  to  one  son,  reserving  a 
privilege  of  water  for  the  other  part, 
which  he  gives  to  another  son,  upon  their 
respectively  coming  of  age  ;  and  orders 
the  son  who  takes  a  certain  part,  to  keep 
a  horse  and  cow  for  the  wife,  and  to  cut 
and  lay  firewood  at  her  door  during  her 
widowhood.  /feWthat  the  devises  are  not 
in  bar  of  dower  in  the  farm.  Webb  v. 

i.  565 


2.  At  In-w  it  is  settled  that  when  the  hus- 
band devises  generally  to  the  wife,  the 
same  cannot  be  averred  to  be  in  satisfac- 
tion of  dower  unless  it  is  so  exprebsed. 
But  equity  puts  her  to  her  election,  where 


there  appears  an  evident  intention  to  bar 
her,  where  dower  would  disappoint  the 
will,  and  where  the  devises  to  her  and 
her  dower,  are  inconsistent  with  each 
other.  i.  565 

3.  A  conveyance  of  the  husband's  land  by 
husband  and  wife,  without  an  acknow- 
ledgment by  the  wife  agreeably  to  the 
act  of  24th  of  February  1770,  does  not  im- 
pair the  wife's  right  of  dower.  Kirk  v. 
Dean,  ii.  341 

DOUBLE  INSURANCE. 
See  INSURANCE. 

EJECTMENT. 
See  MORTGAGE,  1. 
EQUITY,  2,  3. 
AMENDMENT,  11,  12. 

1.  A  person  who  has  purchased  the  defend- 
ant's interest  in  the  premises  at  sheriff's 
sale,  and  after  ejectment  brought  has 
obtained  possession  under  the  act  of  6th 
Jlpril  1802,  may  be  made  a  co-deferidant, 
notwithstanding   there  may  be  persons 
interested  in  the  purchase  whose  names 
are  not  disclosed.  Lessee  of  Murray  et  ux. 
v.  Galbraith,  ii.  59 

2.  If  the  plaintiff  claims  under  an  improve- 
ment right  only,  he  cannot  support  an 
ejectment,  unless  he  has  been  in  posses- 
sion within  seven  years  before  the  suit 
was  brought.  JBurdv.  The  Lessee  of  Dans- 
dale,  ii.  89 

3.  If  the  plaintiff  in  ejectment  is  bound  in 
equity  to  make  title  to  the  defendant  for 
a  part  of  the  premises,  the  court  will  do 
the  defendant  justice  by  staying  execu- 
tion until  the  title  is  secured.     Lessee  of 
Mathers  v.  JlJeetoright,  ii.  93 

4.  An   actual  settler  cannot    support   an 
ejectment  without  a  survey.     Cosby  v. 
The  Lessee  of  Brown,  ii.  124 

5.  It  is  a  sufficient  description  of  the  pre- 
mises, within  the  act  of  21st  of  March 
1806,  which  devises  the  writ  of  eject- 
ment, to  mention  the  county  and  town- 
ship, the  number  of  acres,  and  the  name 
or  names  of  the  persons  who  own  the  ad- 
joining lands,   //awn  v.  Norris,         iv.  77 

6.  Where  articles  of  agreement  have  been 
entered  into  for  the  sale  of  lands,  the 
vendee,  upon  tender  of  the  purchase  mo- 
ney, may  enforce  them  by  ejectment,  ib. 

7.  Two  verdicts  the  same  way  in  ejectment, 
no  bar  to  a   new  trial,  where  there  is 
ground  to  apprehend  that  the  jury  have 
erred,    and  the  statute   of   limitations 
would  defeat  a  new  suit.    Lessee  of  Mit- 
chell v.  Mitchell,  iv.  180 


GENERAL  INDEX. 


559 


8.  Statement  in  ejectment  against  one  de- 
fendant, filed  before  the  first  term:  after- 
wards the  sheriff  according  to  the  com- 
mand of  his  writ  summoned  as  defend- 
ant another  person  found  in  possession. 
Held,  that  the  statement  was  right ;  and 
that  if  the  name  of  the  other  defendant 
should  be  added,  it  might  be  done  after 
verdict  and  judgment  below,  and  this 
Court  would  consider  it  as  done.  Irish  v. 
ScoviU,  vi.  55 

9.  If  the  pr&tipe  for  a  summons  in  eject- 
ment, particularly  describes  the  land  in 
controversy,  it  is  not  necessary  for  the 
plaintiff  to  file  another  description  of  the 
land,  according  to  the  sixth  section  of  the 
act  of  21st  March  1806.  Cahill  v.  Sen, 

vi.  99 

10.  An  amicable  action  of  ejectment  is  good, 
although  the  act  prescribes  the  form  of 
the  writ  of  ejectment,  and  says  it  shall 
not  be  otherwise.  Massey  v.  Thomas, 

vi.  333 

ELECTION. 
See  APPOINTMENT. 

A  died  intestate,  seized  of  three  tracts  of 
land,  "  Black  Acre,"  "  White  Acre,"  and 
"  Green  Acre"  leaving  one  son  and  five 
daughters.  By  an  execution  against  the 
son,  his  one  undivided  sixth  part  of 
"  Black  Acre"  was  sold  to  B  by  the 
sheriff.  The  son  afterwards  conveyed  to 
C  all  his  estate,  in  trust  for  the  support 
and  maintenance  of  his  wife  and  chil- 
dren ;  and  finally  he  was  discharged  un- 
der the  insolvent  law,  and  assigned  all 
his  property  to  D  and  E  in  trust  for  his 
creditors.  The  estate  of  the  intestate  was 
then  upon  an  application  to  the  Orphans' 
Court,  divided  into  three  parts,  each  of 
the  tracts  making  one,  appraised  at  a 
certain  sum.  B  presented  a  petition  pray- 
ing that  he  might  in  the  right  of  the  son 
be  allowed  to  elect  "  Black  Acre,"  upon, 
the  terms  prescribed  by  the  act  of  as- 
sembly. C  by  petition  prayed  that  he 
might  be  allowed  in  the  same  right,  and 
upon  the  same  terms,  to  elect  "  White 
Acre."  D  and  E  did  not  interfere  Held 
that  as  the  petitioners  drew  different 
ways,  and  neither  had  the  son's  entire 
right  of  election,  the  decree  of  the  Or- 
phans' Court,  rejecting  both  petitions, 
and  decreeing  the  election  to  the  eldest 
daughter,  was  right.  Kline  v.  Grayson, 

iv.  225 

ENLISTMENT. 

1.  A  minor  under  the  age  of  eighteen, 
bound  by  the  managers  of  the  almshouse 


as  an  apprentice  to  a  mechanic,  who 
covenanted  not  to  assign  the  indenture 
without  the  consent  of  the  managers, 
may  with  the  consent  of  his  master  in 
writing,  and  without  the  consent  of  the 
managers,  be  enlisted  as  a  soldier  in  the 
army  of  the  United  States.  Commonwealth 
v.  Barter,  \.  423 

2.  A  mother  is  a  parent,  within  the  act  of 
Congress  of  20th  January  1813,  for  the 
enlistment  of  minors  ;  and  if  the  minor 
has  neither  father,  master  nor  guardian, 
her  consent  is  necessary  to  his  enlist- 
ment. Commonwealth  v.  Callan,  vi.  255 

ENTRY,  FORCIBLE. 
See  COSTS,  13. 

EOJJITABLE  DEMAND. 

See  SET-OFF,  4. 

EQUITY. 

See  HARD  BARGAIN. 
LEGAL  ESTATE. 
OBLIGATION,  2. 

1.  The  equity  decisions  in  England  before 
the  revolution,  are  of  authority  in  this 
state  ;  and  as  we  have  no  court  of  chan- 
cery, it  has  been  the  settled  practice  of 
the   Supreme   Court,  to   proceed    upon 
them.   Ebert  v.  Wood,  i.  217 

2.  If  the  plaintiff  in  ejectment  is  bound  in 
equity  to  make  title  to  the  defendant  for 
a  part  of  the  premises,  the  Court  will  do 
the  defendant  justice  by  staying  execu- 
tion until  the  title  is  secured.    Lessee  of 
JWathers  v.  Akeviright,  ii.  93 

3.  If  the  legal  title  is  in  A,  and  an  equity  in 
B,  the  tenant  in  possession,  which  it  is 
competent  to  A  to  satisfy  by  payment  of 
money  or  a  tender,  it  is  not  necessary 
that  he  should  pay  or  tender  before  the 
institution  of  the  ejectment ;  but  it  will 
answer  if  done  at  any  time  upon  the  trial. 
Lesste  of  Moody  v.  Vaiulyke,  iv.  31 

4.  A  bill  of  exchange  taken  out  of  the  usual 
course  of  trude,  as  where  the  bill  itself 
is  not  handed  over,  but  a  mere  memo- 
randum promising  to  pay  the  amount 
upon  advice  of  its  payment,  is  subject  in 
the  hands  of  a  third  person,  to  all  the 
equity  that  existed  between  the  original 
parties.  Evans  v.  Smith,  iv.  366 

5.  Equity  will  consider  joint  tenants  as  te- 
nants in  common,  when  they  purchase 
lands  with  a  view  to  expend  large  sums 
of  money  in  the  improvement  of  them. 
Duncan  v.  Form-,  vi.  193 


560 


GENERAL  INDEX. 


ERROR. 


See  PRACTICE,  9.  13.  19.  22. 

1.  A  writ  of  error  lies  from  the   Supreme 
Court  to  a  judgment  rendered  by  the 
Common  Pleas  upon  a  verdict  in  a  feign- 
ed issue.   Vansant  v.  Boileau,  i.  444 

2.  A  variance  between  the  declaration  and 
the  bond  of  which  Oyer  is  given,  is  mat- 
ter of  demurrer,  but  not  of  error.  Dou- 
glass v.  Beam,  ii.  76 

3.  The  act  of  24th  February  1806,  requiring 
the  judges  to  reduce  their  opinions  to 
•writing,  and  to  file  them  of  record,  makes 
no  alteration  as  to  those  matters,  which 
are  the  subject  of  revision  upon  a  writ  of 
error ;    and  therefore  the  reasons  of  a 
judge  for  not  granting  a  new  trial,  though 
filed  of  record,  are  not,  however  erro- 
neous, subject  to  review  upon  a  writ  of 
error.  Burdv.  The  Lessee  ofDansdale,  ii.  80 

4.  The  decision  of  the  Common  Pleas  upon 
a  motion  for  a  new  trial  is  not  the  sub- 
ject of  a  writ  of  error,  notwithstanding 
the  reasons  of  the  Court  be  reduced  to 
writing,  and  filed  of  record.    Wright  v. 
The  Lessee  of  Small,  ii.  93 

5.  If  a  judgment  for  want  of  appearance  is 
entered  against  an  administrator,  and  it 
appears  by  the  prxcipe  that  there  were 
not  ten  days  between  the  summons  and 
return  day,  the  judgment  is  erroneous. 
Fitzsimons  v.  Salomon,  ii.  436 

6.  Upon  an  indictment  for  writing  and  pub- 
lishing a  libel  on  the  characters  of  A  and 
B,  and  also  upon  the  memory  of  C  de- 
ceased,  the  jury  found  the   defendant 
"  guilty  of  writing  and  publishing  a  bill 
"  of  scandal  against  A  and  B,  but  not 
"  guilty  as  to  any  C  deceased."  Judgment 
reversed,  because  the  defendant  was  not 
found  guilty  of  the  offence  charged  in 
the  indictment.    Sharff  v.  The  Common- 
•wealth,  ii.  514 

7.  A  writ  of  error  does  not  lie  to  the  pro- 
ceedings in  cases  of  divorce.    Miller  v. 
Miiler,  iii.  30 

8.  If  bail  in  error  is  not  perfected  within 
ten  days  after  exception,  not  only  may 
execution  issue  from  the  court  below, 
but  the  defendant  in  error  is  entitled  to 
a  nonpros.  Taggart  v.  Cooper,  iii.  34 

9.  A  judgment   against  three  defendants 
upon  a  submission  to  arbitration  by  one, 
is  erroneous.  Studebackerv.  Moore,  iii.  124 

10  A  writ  of  error  lies  in  all  cases  where 
a  court  of  record  has  given  a  final  judg- 
ment, or  an  award  in  the  nature  of  a 
judgment.  Common-wealth  v.  Judges  of 
the  Common  Pleas,  iii.  276 


11.  A  writ  of  error  lies  to  an  order  of  the 
Common  Pleas,  in  the  nature  of  a  judg- 
ment,   dismissing  an   appeal  from    the 
judgment   of  a    magistrate.      Beale   v. 
Dougherty,  iii.  432 

12.  An  award  of  arbitrators  is  a  judgment 
of  the  Court  from  the  time  of  its  entry 
on  the  docket,  and  subject  to  a  writ  of 
error.  Ebersoll  v.  Xrug,  iii.  528 

13.  It  is  not  error  in  the  Common  Pleas  to 
refuse  leave  to  the  defendant,  immedi- 
ately before  the  trial  of  the  cause,  to 
strike  out  the  plea  of  non  estfactum,  and 
to  rely  solely  upon  the  plea  of  payment. 
Waggoner  v.  Line,  iii.  589 

14.  A  writ  of  error  cannot  be  sued  out  upon 
an  award  of  arbitrators,  until  after  the 
expiration   of  the  time  allowed  for  an 
appeal.  Ebersoll  v.  Krug,  iii.  531 

15.  A  writ  of  error,  by  the  principles  of 
the  common  law,  is  grantable  in  all  civil 
cases,  ex  debito  justitix.    It  is  a  writ  of 
right.  iii.  531 

16.  A  writ  of  error  lies  to  an  award  of  arbi- 
trators upon  which  a  judgment  has  been 
entered.   Lewis  v.  England,  iv.  5 

17.  A  writ  of  error  to  the  Mayor's  Court  to 
remove  the  record  of  a  prosecution  for 
felony,  or  for  a  misdemeanor  which  sub- 
jects the  offender  to  an  infamous  punish- 
ment, is  not  grantable  of  course,  but 
must  have  the  consent  of  the  Attorney 
General,  or  a  judge  of  the    Supreme 
Court.   Commonwealth  v.  Profit,     iv.  424 

18.  A  writ  of  error  does  not  lie  to  the  judg- 
ment of  the  Quarter  Sessions  upon  an 
appeal  by  supervisors  of  roads  from  a 
summary  conviction  by  a  justice  of  the 
peace ;    the  proceedings  in  such  cases 
not  being  according  to  the  course  of  the 
common  law.   Ruhlman  v.  The  Common' 
•wealth,  v.  24 

19.  It  is  not  error  to  give  judgment  upon 
a  scire  facias  for  the  amount  of  the  pre- 
ceding judgment,  and  interest  up  to  the 
judgment  on  the  sdre  facias .  Berryhill  v. 

Wells,  v.  56 

20.  Where  an  act  of  assembly  appropriates 
in  a  certain  way,  a  fine  to  be  inflicted 
upon  persons  convicted  of  a  certain  of- 
fence, it  is  error  if  the  judgment  appro- 
priates it  in  a  different  way.    Werfel  v. 
The  Commonwealth,  v.  65 

21.  If  the  record  of  the  court  below  set 
forth,  that  before  a  bill  of  indictment  was 
submitted  to  the  grand  jury,  the  sheriff 
had  returned  the  precept  to  him  directed, 
in  all  things  duly  executed,  and  so  in  like 
manner  as  to  the  petit  jury,  by  whom  the 
prisoner  was  tried,  it  is  sufficient,  with- 


GENERAL  INDEX. 


561 


out  stating  the  precept  and  retuni  a' 
large  ;  nor  can  it  be  alleged  for  error, 
that  HO  precept  was  issued.  Werfel  v.  the 
Common-wealth,  V.  65 

22.  His  not  a  ground  for  reversing  a  judg- 
ment, that  the  judge  below  erred  in  his 
charge,  upon  a  matter  not  pertinent  to 
the  issue.     Numan  v.  Kapp,  v.  73 

23.  If  a  plaintiff,  by  arbitrating  his  cause, 
and  getting  judgment,  before  the  entry 
of  special  bail,  dispenses  with  special 
bail,  the  defendant  cannot  assign  it  for 
error.  Mvulson  v.  Jtees,  vi.  52 

24.  The  Supreme  Court  will  not  grant  an 
allocator  for  svwrit  of  error  in  a  criminal 
case,  except  where  it  has"  reason  to  think 
there   has  been   an  error  affecting  the 
merits  of  the  particular  case,  or  having 
an  important  bearing  upon  other  cases. 
Commonwealth  v.  Immell,  vi.  403 

25.  Upon  an  appeal  from  the  award  of  ar- 
bitrators, it  is  error  to  read  the  award  to 
the  jury.  Shaejfer  v.  Kr-eitzer,        vi   430 

26.  If  process   goes  to  the    sheriff   and 
county  commissioners  to  drain  a  jury  for 
a  Court  of  Oyer  and  Terrniner,  and  it  be 
not  returned  so  that  it  shall  appear  in 
some  part  of  the  jury  process  that  the 
jurors  have  been  legally  drawn,  it  is  error. 
Eaton  v.  The  Commomxeatth,  vi.  447 

27.  A  writ  of  error  is  not  a  supersedeasto 
proceedings  in  the  Common  Fleas,  be- 
tween landlord  and  tenant.  Grubb  v.  Fox, 

vi.  460 

ESCAPE. 

Quaere,  whether  the  discharge  of  a  defen- 
dant by  the  sheriff,  in  consequence  of  a 
void  order  by  a  judge,  amounts  to  a  vo- 
luntary escape  ?  flecker  v.  Jarret,  iii.  404 

ESCHEAT. 

A  traverse  to  an  inquisition  of  escheat, 
must  be  tried  by  a  jury  in  the  county 
where  the  inquisition  was  taken  ;  and 
cannot  be  tried  by  this  Couit,  in  a  sum- 
mary manner,  nor  at  Nisi  Print  in  the 
county  of  Philadelphia,  if  taken  in  any 
other  county,  nor  by  a  jury  .summoned 
from  the  proper  county.  Hence,  as  this 
Court  cannot  try  issues  in  fact  out  of  the 
county  of  Philadelphia,  and  a  traverse  to 
an  inquisition  of  escheat  can  be  taken 
only  in  this  Court,  an  inquisition  taken 
in  any  other  county,  cannot  be  traversed. 
Lock  v.  Estate  of  Lloyd,  v  375 

ESTATE. 

See  DEVISE,  3,  4,  5,  6,  7,  8,  9,  10. 
Husband  and  wife  conveyed  the  estate  of 
the  wife  in  trust  for  their  use  during 
VOL.  VI. 


their  joint  lives,  and  in  case  of  the  de- 
termination of  the  joint  estate  for  life  by 
tlie  death  of  the  wife  before  the  husband 
without  issue,  then  for  the  use  of  the 
husband  in  fee  Held  that  the  dying  with- 
out issue  must  be  understood  in  its  na- 
tural sense  of  a  dying  without  issue  liv- 
ing at  the  death  of  the  wife  ;  and  the  wife 
having  left  a  child  who  survived  her  a 
few  days,  and  then  died  before  the 
husband,  he  did  not  take  a  fee.  Lessee  of 
Huston  v.  Hamilton,  ii.  387 

ESTATE  FOR  LIFE. 
See  DEVISE,  7.9. 

ESTATE  TAIL. 
See  DEVISE,  4.  8. 

LIMITATIONS,  ACT  OF,  2. 

1 .  A  devise  to  A  "  and  his  lawful  begotten 
heir  for  ever,"  is  an  estate  tail  in  Jl.  Les- 
see of  Hail  v.  Vandegrift,  iii.  374 

2.  It  is  not  necessary  that  the  body  from 
which  the  issue  is  to  come,  should  be 
mentioned  in  express  terms,  in  order  to 
make  a  good  estate  tail.     It  is  sufficient 
if  the  intention  of  the  testator  appears 
with  reasonable  certainty.  ib. 

EVIDENCE. 

See  PAROL  EVIDENCE,  1,  2. 
CERTIORARI,  3,  4. 

1.  A  protest  made  by  the  captain  of  a  ves- 
sel within  twenty  four  hours  after  his 
arrival  at  his  first  port  where  both  the 
owner  and  insurer  resided,  and  with- 
out notice  to  the  insurer,  is  evidence  in. 
an  action  between  those  parties,  to  show 
that  an  occurrence  a*  sea  had  made  a  de- 
viation necessary.  .Brown  v.  Girarcl.  i.40 

2  In  an  action  of  slander  the  defendant 
may  give  in  evidence  in  mitigation  of 
damages,  that  a  third  person  told  him 
what  he  related  Kennedy  \.  Gregory,  i.  85 

3.  The  return  of  a  deputy  surveyor  is  m<  re- 
ly prima  facie  evidence  of  the  t  uth  of 
the   matter  returned.     Faulkner  v    The 
Lessee  of  Eddy,  i   188 

4.  A  deed  is  not  admissible  in  evidence  un- 
til at  kast  a  shadow  of  title  is  shown  in 
the  grantor.  i.  188 

5.  If  an  original  entry  in  a  shop  book  is  in 
the  handwriting  of  a  clerk,  it  mu-it  be 
proved  by  him  before  it  can  be  admitted 
in  evidence,  unless  he  is  dead  or  out  of 
the  power  of  the  court.    Sterrett  v.  Bull, 

i.  234 

6.  A  commission  of  bankruptcy  and  assign- 
ment, are  not  conclusive  evidence  of  th.e 

4B 


562 


GENERAL  INDEX. 


trading  and  act  of  bankruptcy,  in  an  ac- 
tion of  trover  by  the  assignees.  Rugan  v, 
West,  i.  263 

7.  Certified  copies  of  the  proceedings  by 
the  commissioners  of  bankrupt,   when 
finished,  and  filed  in  the  District  Court, 
are/»rmta  facie  evidence  against  all  per- 
sons, of  the-  commission,  trading,  and  act 
of  bankruptcy.  i.  263 

8.  Upon  an  indictment  for  stealing  a  bill 
obligatory,  evidence  of  the  contents  of  the 
instrument  may  be  given,  without  shew- 
ing notice  to  the  defendant  to  produce 
the  original  on  the  trial.  Common-wealth  v. 
JMessinger,  i.  273 

9.  The  sentence  of  a  foreign  court  of  ad- 
miralty, condemning  property  as  prize,  is 
conclusive,  not  only  as  to  its  direct  effects, 
but  as  to  the  facts  directly  decided  by  it. 
Dempsey  v.  Insurance  Company  of  Penn- 

'    sylvania,  i.  299 

10.  The  articles  of  agreement  between  the 
proprietaries  of  Pennsylvania  and  Mary 
land,  settling  the  boundaries  of  the  two 
provinces,  are  evidence,  without  being 
proved  or  acknowledged  according  to  the 
laws  of  Pennsylvania  ;  being  in  the  light 
of  a  state  paper  well  known  to  the  courts 
of  justice.    Lessee  of  ttoss  v.  Cutshail, 

i.  399 

11.  Parol  declarations  of  the  wife  that  she 
executed  a  conveyance  of  her  estate  vo- 
luntarily, and  that  if  it  was  insufficient, 
she  would  execute  and  acknowledge  it 
again,  or  do  any  other  act  to  make  the 
deed  good,  are  inadmissible  to  supply  a 
defective    acknowledgment.     Lessee    of 
son  v.  Bailey,  \.  470 

12.  An  executor  who  is  plaintiff  in  a  feign- 
ed issue  to  try  the  validity  of  the  will,  is 
not  a  competent  witness,  being  liable  for 
costs.  Vansant  v.  Boileau,  i.  444 

13.  The  commander  of  a  public  armed  ves-  i 
sel  which  has  made  a  prize,  is  a  good 
witness  in  an  action  by  a  seaman  against 
the  prize  agent,  to  reduce  the  plaintiff's 
share  of  prize  money.  Murray  v.  Wilson, 

i.  531 

14.  Qii<ere,  Whether  a  certificate  by  the  ac- 
countant of  the  navy  department,  under 
the  seal  of  that  department,  is  evidence. 

i.  531 

15.  Declarations  made  bv  a  party  at  the 
time  of  executing  a  written  agreement, 
are  not  evidence,  if  not  communicated  to 
the  other  party.  Wallace  v.  Baker,  i.  610 

16.  A  subscribing  witness  to  a  warrant  of 
attorney  swore  that  from  his  minutes  he 
found  he  was  at  a  certain  place  on  a  cer- 
tain day,  being  the  day  the  warrant  bore 


date,  and  that  upon  reference  to  the  war- 
rant he  found  his  name  in  his  own  hand- 
writing as  an  attesting  witness,  and  that 
the  seal  appeared  to  have  been  taken, 
from  an  engraving  he  then  and  still  had, 
and  from  all  these  circumstances  he  was 
convinced  that  he  was  present  and  witnessed 
the  execution  of  the  instrument.  This  is  suf- 
ficient proof  of  the  warrant  to  go  to  the 
jury.  Pigott  v.  Hoilaway,  i.  436 

17.  The  verdict  of  a  former  jury  in  the 
same  cause,  which  has  been  set  aside  by 
the  Court,  is  not  evidence.     Ridgely  v. 
Spenser,  ii.  70 

18.  A  deposition  taken  exparte under  a  rule 
of  court,  after  the  hour  named  in  the  rule, 
cannot  be  read  in  evidence.     But  semble 
that  it  may,  if  the  opposite  party  had 
notice,  and  did  not  attend  at  the  hour 
named.  JBachman's  case,  ii.  72 

19.  In  an  action  against  a  common  carrier 
by  water,  for  the  loss  of  the  plaintiff's 
goods,  where  the  defence  is  set  up  that 
carriers  by  water  are  by  custom  answer- 
able for  loss  only  in  case  of  negligence, 
it  is  not  competent  to  the  defendant  to 
give  evidence,  that  in  a  case  where  the 
plaintiff  had  acted  as  a  common  carrier, 
he  had  refused  to  make  compensation  for 
a  loss.  Dean  v.  Swoop,  ii.  72 

20.  A  grantor  is  a  good  witness  to  support 
a  title  derived  under  a  conveyance  from 
him  containing  the  words  "  grant,  bar- 
"  gain,  sell."  Lessee  of  Gratz  v.  Etvalt, 

ii.  95 

21.  A  paper  purporting  to  be  a  survey  on  an 
application  belonging  to  a  deputy  sur- 
veyor, found  among  the  assistant's  pa- 
pers at  his  death,  but  without  any  sig- 
nature, or  any  evidence  about  it  that  it 
had  been  seen  and  recognised  by  his  prin- 
cipal, is  not  evidence  of  a  survey.  Lessee 
ofM'Kenzie  v.  Crow,  ii.  105 

22.  The  grantor  of  a  tract  of  land,  who  has 
not  given  any   warranty,  nor  practised 
any  deception,  is  a  competent  witness  to 
support  the  title.    Lessee  of  Cain  v.  Hen- 
derson, ii.  108 

23.  Parol  evidence  is  admissible  to   show 
that  a  course  and  boundary  in  a  survey 
and  patent,  are  incorrectly  stated,  and 
that  they  are  otherwise  upon  the  ground. 
Mageehan  v.  The  Lessee  of  Mains,  ii.  109 

24.  The  assignor  of  a  bond  is  a  competent 
witness  to  prove  that  it  was  fraudulently 
obtained  by  him,  or  that  it  was  given  to 
raise  money  for  the  obligor,  and  that  he 
used  it  to  pay  his  own  debt.     Baring   v. 
Shippen,  ii.  154 

25.  The  rule  that  a  man  shall  not  invalidate 
an  instrument  to  which  he  has  given 


GENERAL  INDEX. 


563 


credit  by  signing  his  nn-.tie,  is  confined 
in  Pennsylvania  to  negotiable  instruments 

ii   165 

26.  Before  the   proceedings   of   a   militia 
con:  t  of  appeals  can  be  read  in  evidence 
in  an  action  of  trespass  against  a  captain 
who  justifies  under  its  senttnce,  it  must 
be  shewn  that  the  court   was  regularly 
constituted,  which  can  only  be  don«-.  by 
producing-  the  commission  of  the   com- 
manding officer  of  ti.e  regiment,  and  the 
commissions  of  the  officers  composing 
the  com  t,  by  shewing  their  appointment, 
and  that  in  all  respects  they  have  com- 
plied with  the  law.  Wilson  v.  John,  ii.  209 

27.  The  existence  of  a  written  agreement 
of  partnership  between  defendants,  does 
not  preclude  the  plaintiff" from  proving  a 
partnership  by  the  actions  or  declarations 
of  the  parties.    H'iddtfitld  v.  Widdi field, 

ii'.  245 

28.  The  copy  of  a  list  of  lands  belonging  to 
a  person  deceased,  made  out  fifty  years 
before  the  trial  by  his  executor,  who  is 
also  deceased,  is  not  evidence,  nor  would 
the  original  be  if  produced.    Lessee  of 
Galloway  v.  Ogle,  ii.  468 

29.  In  an  ejectment  against  a  trustee,  it  is 
not  competent  to  give  evidence  that  he 
had  notice  of  an  unrecorded  deed  before 
his  appointment ;  because  it  cannot  af- 
fect the  cestuy  que  trust.  Lessee  of  Henry  v. 
Morgan,  ii.  497 

30.  An  ex  parte  probate  of  a  will,  taken  by 
the  Register  at  the  instance  of  the  defen- 
dants in  an  issue  then  pending  to  try  the 
validity  of  another  will  by  the  same  tes- 
tator, is  not  valid  ;    nor  is  the   will  so 
proved,  evidence  in  the   feigned  issue. 
Ifantz  v    Hull,  ii.  511 

31.  In  order  to  ascertain  whether  a  repub- 
lished  will  operates  as  a  revocation  of  a 
prior  will,  the  contents  may  be  proved 
by  parol,  if  the  will  itself  cannot  be  found, 
and  the  usual  ground  is  laid  for  introduc- 
ing the  secondary  evidence.    Hazard  v. 
Davis,  ii.  406 

32.  The  copy  of  a  Connecticut  settler's  deed 
deposited  according  to  act  of  assembly 
in  the  land  office,  is,  if  certified  under 
the  seal   and   signature    of   the  proper 
officer,  as  good  evidence  as  the  original 
would  be.   Carkhujf'v.  Anderson,         iii.  4 

33.  An  order  of  survey  indorsed  by  the  sur- 
veyor-general upon  the  copy  of  an  appli- 
cation which  had   been   entered  in  the 
secretary's  office,  is  good  evidence,  al- 
though there  is  no  proof  that  a  copy  of 
the  application   was  ever  entered  upon 
the  books  of  the  surveyor-general.  Lessee 
of  Stephens  v.  Bear,  iii.  31 


34.  A  return  of  survey  is  strong  presump- 
tive evidence  that  a  regular  survey  has 
been  made  on  the  ground  ;  and  it  lies 
upon  the  party  objecting  to  it,  to  shew 
that  it  has  not,  by  such  circumstances  as 
are  inconsistent  with  a  survey.  Lessee  of 
U'irtv.  Stevenson,  iii.  35 

35  The  declarations  of  a  deputy  surveyor, 
that  he  had  made  a  certain  survey  under 
an  order  from  the  proprietaries,  are  not 
evidence,  although  the  deputy  was  dead 
before  the  trial,  and  all  his  official  papers 
had  been  accidentally  burnt,  and  in  addi- 
tion to  these  circumstances,  the  warrant 
of  acceptance  recited  that  the  survey 
had  been  made  under  such  an  order. 
Lessee  of  llonnet  v.  De-uebaugh,  iii.  175 

36.  The  recitals  in  a  warrant  of  acceptance 
are  evidence  against  the  proprietary,  but 
not  against  persons  claiming  adversely  to 
the  survey,  by  a  title  commenced  before 
the  return  of  survey.  ibid. 

37.  If  the  subscribing  witness  to  a  bond,  is 
out  of  the  jurisdiction  of  the  Court,  and 
upon  diligent  inquiry  no  person  can  be 
found  within  the  jurisdiction  who   can 
prove  his  handwriting,  the  handwriting 
of  the  obligor  may  be  proved.     Clark  v. 
Sanderson,  iii.  192 

3V.  The  protest  of  a  master  of  a  vessel  is 
evidence  in  an  action  of  replevin  by  the 
owner  of  the  cargo  against  the  vendee  of 
the  captor.  Cheriot  v.  Foussat,  iii.  227 

39.  A  paper  which  is  not  evidence  per  se 
in  a  suit  between  the  underwriter  and 
the  assured,  does  not  become  so  for  any 
purpose,  in  consequence  of  having  been 
exhibited  by  the  latter  to  the  former  as 
one  of  the  preliminary  proofs   of  loss  ; 
except  the  question  be  merely  whether 
such  a  paper  was  exhibited.  Thurston  v. 
Murray,  iii.  326 

40.  Quaere,  whether  the  acknowledgment  of 
a  deputy  sheriif,  of  things  done  by  him 
in  the  course  of  his  office,  is  evidence 
against  the  sheriff?  Hecker  v.  jfarret, 

iii.  404 

41.  Where    an    account  stated,   deed,  or 
other  document,   is  offered  in  evidence 
to  the  jury,  the  Court  may  either  decide 
themselves  that  it  is  or  is  not  sufficiently 
proved,  and  admit  or  reject   it  accord- 
ingly ;  or  they  may  refer  the  evidence  to 
the  jury,  instructing  them  to  disregard 
the  deed,  &c.,  unless  they  are  satisfied 
with  the  proof  of  its  execution.  Commis- 
sioners of  Berks  Co.  v.  Itoss,  iii.  539 

42.  After  the  words  laid  in  the  declaration 
are  proved,  the  plaintiff'  may  give  in  evi- 
dence other  words,  actionable  in  them- 
selves, and  spoken  since  the  suit  brought, 


GENERAL  INDEX. 


to  shew  the  malice  of  the  defendant 
Wallis  v.  Mease,  iii.  546 

43.  Declarations  of  the  grantor,   at  and 
immediately  before  the  sealing  and  deli- 
rery  of  a  deed,  are  admissible  in  evidence 
to  shew  that  he  did  not  intend  to  convey 
what    might   be   nevertheless    includec 
within  the  description  of  the  deed  Lessee 
of  Dingle  v  Marshall,  iii.  587 

44.  A  copy  of  a  judge's  notes  of  the  testi- 
mony given  by  a  witness  upon  a  former 
trial  between  the  same  parties,  and  cer- 
tified by  the  judge  to  be  a  true  copy,  is 
not  evidence  ;  nor  is  the  original   itself 
It  is  no  part  of  his  official  duty  to  take 
notes,  nor  are  the  notes  in  the  nature  oi 
a  deposition.  Miles  v.  O"  Hara,        iv;10£ 

45.  The  copy  of  a  coroner's  official  bond, 
authenticated  by  the   Secretary  of  the 
Commonwealth  from  the  original  on  file 
in  his  office,  is  not  evidence,  unless  it  ap- 
pears thereby  that  the  bond  had  been 
previously   recorded   in   the    recorder's 
office,  for  the  proper  county.    Young  \ 
The  Cominoniaealth,  iv.  113 

46.  The   general  rule  is,   that  payments 
made  to  any  other  person  than  the  plain- 
tiff in  the  suit,  must  be  proved  by  the 
oath  of  a  witness     But  as  exceptions  to 
this  rule,  payments  for  land,  made  to  the 
officers  of  the  land  office,  may  be  proved 
by  the  officer's  receipt,  and  payment  of 
the  fees  and  expenses  of  survey  by  the 
deputy  surveyor's  receipt.  Lesse e  of  C/ug- 
gaffe  v.  Swan,  iv.  150 

47-  A  certificate  by  one  who  had  been  a 
deputy  surveyor,  that  at  a  previous  time 
A  had  paid  him  the  fees  of  a  certain  sur- 
vey, is  not  evidence.  ibid 

48.  The  testimony  of  jurors  themselves  is 
not  admissible  to  impeach  their  verdict 
upon  the  ground  of  misconduct.         ibid. 

49.  It  is  not  necessary  that  a  survey  should 
recite  the  authority  under  which  it  was 
made;  and  where  it  does  not,  it  is  a  mat- 
terof  fact  for  the  jury  to  decide,  whether 
it  was  made  under  any  and  what  warrant. 
A  survey  of  this   description  is  there- 
fore admissible  in  evidence,   after  any 
warrant  has  been  shewn,  under  which 
the  survey  may  by  possibility  have  been 
made.  Sproul  v.  The  Lessee  of  Plumsted, 

iv.  189 

50.  A  deed  from  a  defendant  in  ejectment 
to  a  third  person,  subsequent  to  the  com- 
mencement of  the  suit,  may  be  read  in 
evidence  upon  the  trial  of  the  ejectment, 
in  order  to  support,  the  credit  of  a  wit- 
ness who  hud  sworn  that  he  had  no  in- 
terest in  the  land,  and  whose  credit  had 


been  impeached.   Richardson  v.  The  /-«- 
see  of  Stewart,  iv.  198 

51.  It  is  not  necessary  that  the  object  of 
the  evidence  should   be  stated  by  the 
party  offering  it,  unless  it  is  asked  by  the 
opposite  counsel  or  the  court.   If  the  ob- 
ject  is  neither  asked  nor  stated,  and  the 
evidence  is  rejected  generally,  i»s  admis- 
sibility  for  any  purpose,  is  sufficient  to 
impugn  the  decision  of  the  court,  iv.  198 

52.  The  rule  of  excluding  all  but  rebutting 
testimony  after  the  party  has  once  clos- 
ed his  evidence,  is  not  to  be  so  strictly 
adhered  to,  as  to  do  injustice.  ibid. 

53.  An  office  copy  of  a  deed  proved  by  one 
subscribing  witness  before  a  judge  of  the 
Supreme  Court  prior  to  the  act  of  1775, 
is  not  evidence ;  nor  is  it  evidenc  e,  al- 
though the  deed  is  proved  by  one  wit- 
ness, and  a  schedule   indorsed  on  the 
dt  ed  by  the  grantor,  and  referring  to  the 
deed,  is  proved  by  another  witness.  The 
act  of  1715  requires  that  deeds  should  be 
proved  by  two  witnesses  present  at  their 
execution,  to  intitle  them  to  record.  Vicroy 
v.  M'Knight,  iv.  204 

54.  £hi<er(t  whether  an  office  copy  of  a  deed 
conveying  lands  in  different  counties,  and 
duly  recorded  in  one,  is  evidence  in  an 
ejectment  for  lands  in  another  county, 
where  it  is  not  recorded,  unless  the  ori- 
ginal is  lost.  ibid. 

55.  A  patent  for  land  which  has  been  sur- 
veyed under  a  warrant  issued  from  the 
land  office  since  the  22d  of  September 
1794,  is  only  prinia  facie  evidence  that 
the  warrant  issued  regularly,  aud  that 
the  settlement  required  by  that  act  has 
been  made.  Bixler  v.  Baker,          iv.  213 

56.  A  deed  containing  a  recital  of  another 
deed,  is  evidence  of  the  recited  deed, 
against  the    grantor,    and    all    persons 
claiming  by  title  derived  from  him  subse- 
quently.    But  it  is  not  evidence   against 
one  who  claims  from  him   by  title  prior 
to  the  deed  which  contains  the  recital, 
nor  is  it  evidence   against  a  stranger. 
Hence  recitals  of  certain  mesne  convey- 
ances, contained  in  a  patent  from  the 
Commonwealth  to  Jl,  are  not  evidence 
of  those  conveyances  against   B,   who 
claims  under  a  warrant  from  the  Com- 
monwealth prior  to  the  patent.  Penrose  v. 
Griffith,  iv.  231 

57.  ghiiere,  whether  a  long  possession  under 
a  patent,   would  not  make  its   recitals 
evidence.  ibid. 

58.  An  original  letter  delivered  at  a  house 
where,  by  the  number  in  the  directory, 
the  defendant  resided  at  the   time,  is 
sufficient  to  justify  the  reading  of  a  copy 


GENERAL  INDEX. 


565 


to  the  jury,  after  notice  to  produce  the 
Original.  Hazard  V.  Van  Amringe,  iv.  295 

note 

59.  A  certificate  by  the  secretary  of  the 
land  office,  authenticating  the  copy  of  an 
entry   by  the   recorder  of  Philadelphia 
county,  in  a  book  containing  records  of 
patents,  and  therefore  belonging  to  the 
roll's  office,   and  by  the  act  of  29th  of 
March   1809,    transferred   to    the   land 
office,  is  not  evidence.  Ganvoodv.  Dennis, 

iv.  314 

60.  The  general  rule  is,  that  a  deed  con- 
taining a  recital  of  another  deed,  is  not 
evidence  of  the  recited  deed,    except 
against  the  person  who  makes  such  reci- 
tal, and  those  who  claim  under  him  by 
title  acquired  afterwards.  But  in  the  case 
of  an  ancient  deed,  of  the  loss  of  which 
some  evidence  has  been  given,  where  the 
possession  has  not  been  contrary  to  the 
deed,  and  where  the  subscribing  wit- 
nesses have  been  long  dead,  a  recital  in 
another  deed,  particularly  if  it  is  made 
by  persons  likely  to  know  the  fact,  is 
evidence  of  the  lost  deed.  iv.  314 

61  So  a  deed  containing  such  a  recital  by 
a  person  to  whom  the  lost  deed  is  alleg- 
ed to  have  been  made,  and  who  has  been 
in  possession  a  long  time,  may  be  evi- 
dence to  show  the  nature  of  his  posses- 
sion, and  that  he  exercised  acts  of  ow- 
nership and  held  under  the  lost  deed, 
and  not  merely  as  tenant  by  the  curtesy, 
in  which  character  also  he  was  intitled 
to  possession.  ib. 

62.  Necessity  either  absolute  or  moral,  is  a 
sufficient  ground  for  dispensing  with  the 
usual  rules  of  evidence.  ib. 

63.  The  marshal  of  the  district  was  com- 
manded by  a  precept  to  sell  a  certain 
schooner,  her  tackle,  apparel,  and  furni- 
ture, or  so  much  thereof  as  might  be  ne 
cessary,  the  same  being  then  in  his  cus- 
tody and  possession  ;  and  he  made  return 
that  he  had  sold  the  schooner,  her  tackle, 
apparel,  &c.  to  Jt.  B.  for  such  a  sum.  Held 
that  it  was  competent  to  the  deputy  mar- 
shal to  prove  that  the  sails  were  in  the 
custody  of  A.  B.  before  and  at  the  time 
of  the  sale,  and  that  they  were  expressly 
excepted  at  the  time  of  the  sale,  and  not 
sold.  Dolan  v.  Briggs,  iv.  496 

64.  An  indorsement  on  the  original  writ  by 
the  deputy  sheriff,  of  the  day  on  which 
he  made  the  arrest,  is  no  part  of  the  re- 
cord, nor  is  it  evidence  of  the  time,  for 
the  purpose  of  showing  that  the  cause 
of  action  laid  in  the  narr,  was  subsequent 
to  the  commencement  of  the  suit.        ib. 

65.  Declarations  by  the  grantor  at  the  time 


of  executing  a  deed,  that  he  only  did  it 
for  a  sham,  so  that  the  people  could  not  come 
at  it,  are  not  evidence,  if  made  in  the  ab- 
sence of  the  grantee,  unless  a  ground  is 
previously  laid,  by  shewing  a  trust  in  the 
grantee,  or  his  participation  in  the  fraud. 
Jteichart  v.  Castator,  v.  109 

66.  If  one  man  confides  to  anotherthe  power 
of  making  a  contract,  he  confides  to  him 
the  power  of  furnishing  evidence  of  the 
contract  ;  and  if  the  contract  is  by  parol, 
subsequent  declarations  of  the  party  are 
evidence,  though  not  conclusive.  Meade 
v.  JlPDoToetl,  v.  195 


67-  A  purchaser  at  sheriff's  sale,  cannot 
give  parol  evidence  of  a  deed  by  which 
the  title  was  conveyed  to  the  defendant 
in  the  execution,  unless  he  lays  the  usual 
ground  for  secondary  evidence.  He  stands 
as  to  proof  of  title,  on  the  samt  footing  as 
other  purchasers.  Little  v.  Lessee  of  De- 
lancey,  T.  266 

68.  Evidence  from  a  comparison  of  hand- 
writing, supported  by  other  circumstan- 
ces, is  admissible.  On  the  same  principle, 
from  a  comparison  of  the  types,  devices 
&c.  of  two  newspapers,  one  of  which  is 
clearly  proved,  and  the  other  imperfect- 
ly, the  jury  may  be  authorized  to  infer 
that  both  were  printed  by  the  same  per- 
son. M'Corkle  v.  Binm,  v.  340 

69.  The  letter  of  a  person,  admitting  that 
he    had  received  certain    merchandise 
from  the  plaintiff  to  sell  upon  commis- 
sion, is  not  evidence  of  that  fact  in  a  suit 
brought  against  a  third  person  to  recover 
damages  for  having  falsely  represented 
the  writer  of  the  letter  to  be  a  man  of 
property,  and  integrity,  &c.  Longenecker 
v.  Hyde,  vi.  1 

70.  If  the  question  be  whether  a  receipt  to 
which  there   is   a  subscribing  witness, 
wa«  given,  the  witness  must  be  called: 
but  the  fact  of  the  payment  of  the  mo- 
ney, may  be  proved  by  any  witness.  Heck- 
ert  v.  Maine,  vi.  16 

71.  The  account  kept  by  the  intestate  as 
guardian  of  the  plaintiff',  and  containing 
receipts  and  payments  of  continental  mo- 
ney, but  not  rendered  by  him  on  oath,  ac- 
cording to  the  act  of  1781,  is  not  evi- 
dence: neither  is  the  account  of  the  same 
receipts  and  payments  evidence  if  ren- 
dered by  his  administrators  upon  oath  as 
to  their  belief,  accompanied  by  an  offer 
on  their  part,  to  answer  on  oath  any  ques- 
tions touching  the  amount  :  nor  are  they 
both  together  evidence.  ib. 

72.  The  handwriting  of  a  subscribing  wit- 
ness to  a  leuse,  disinterested  at  the  time 
of  his  attesting,  may  be  proved  if  he  be- 


566 


GENERAL  INDEX. 


comes  interested  subsequently,  though 
by  his  own  voluntary  act.  Lessee  of  Ha- 
milton v.  JUarsden,  vi.  45 

73.  A  lease,  or  bond,  may  be  read  in  evi- 
dence upon  proof  of  the  handwriting  of 
a  subscribing  witness  who  has  become 
interested,  or  is  in  foreign  parts,  with- 
out proof  of  the  handwriting  of  the  les- 
sor or  obligor :  but  the  evidence  is  not 
conclusive,  and  under  suspicious  circum- 
stances, further  proof  is  necessary.       ib. 

74.  Where  boundary  is  the  subject  in  ques- 
tion, what  has  been  said  in  relation  to  it 
by  a  person  now  deceased  is  evidency 
Caufman  v.  Congregation  of  Cedar  Spripf, 

vj:59 

75.  A  written  agreement  was  placed  by 
both  the  parties  in  the  hands  of  a  com- 
mon friend,  who  upon  his  removal  from 
the  scene  of  the  transaction  placed  it 
with  his  father,  who  died.     After  proof 
of  these  facts,  a  witness  swore  that  after 
the  father's  death,  he  together  with  the 
son-in-law  of  the  father  to  whom  all  his 
papers  came,made  diligent  search  among 
the  father's  papers,  but  could  not  find  the 
•writing.    Held,  that  this  was  sufficient 
proof  of  the  loss,  to  lay  a  ground  for  one 
of  the  parties  to  prove  the   contents, 
without  the  oath  of  the  son-in-law  him- 
self as  to  the  search  and  not  finding,  ib. 

76.  The  official  bond  of  a  coroner  may  be 
given  in  evidence  in  a  suit  against  him 
and  his  sureties,  although  not  recorded 
according  to  law  in  the  office  for  record- 
ing deeds.    Giving  the  bond,  and  acting 
in  the  office  are  prima  facie  evidence  that 
the  sureties  have  been  approved  by  the 
judges  of  the  Common  Pleas.   Toung  v. 
The  Common-wealth,  vi.  88 

77.  The  return  of  a  writ  by  a  coroner,  is  evi- 
dence that  a  commission  issued  to  him.ib. 

78.  The  field  notes  of  a  deputy  surveyor, 
showing  a  survey  for  Jl  at  a  particular 
time  ; — a  warrant  in  the  name  of  B  call- 
ing for  Jl  as  adjoining, — an  old  draught 
of  a  survey  found  in  the  office  of  the  de- 
puty surveyor,  on  which  Jfs  name  was 
indorsed  in  the  handwriting  of  the  de- 
puty surveyor, — all  these  papers  admis- 
sible in  evidence  to  show  a  survey  for  Jl. 
Boyks  v.  Johnston's  executors,  vi.  125 

79.  A  prothonotary's  certificate  of  the  ac- 
knowledgement in  open  cc-urt  of  a  deed 
to  himself  by  the  sheriff,  and  his  entries 
of  the  acknowledgment  upon  record,  are 
evidence  in  his  own  cause.  Lessee  of  Rick- 
ets v.  Henderson,  vi.  133 

80.  In  an  action  to  recover  the  price  of  a 
negro,  the  defendant  is  intitled  to  give 
evidence,  that  before,  att  and  after,  the 


time  of  the  sale,  the  negro  was  afflicted 
with  a  disorder  which  made  him  of  little 
value :  and  lie  is  not  obliged  to  show  pre- 
viously that  the  plaintiff' knew  it.  That 
may  be  done  subsequently.  M' Do-well  v. 
Burd,  vi.  198 

81.  If  an  original  deed,  on  which  suit  is 
brought,  is  traced  fiom  the  hands  of  the 
plaintiff  to  his  attorney,  who  believes  it 
to  have  been  lost  while  in  his  keeping,  a 
copy  may  be  given  in  evidence,  without 
affidavit  by  the  plaintiff  that  he  has  not 
got  the  original.  Meyer  v.  Barker ',  vi.  228 

82.  An  edition  of  the  laws,  published  under 
the  authority  of  the  legislature,  is  evi- 
dence as  well  of  the  private  as  of  the^;<6- 
lic  laws  it  contains,    liiildis  v.  James, 

vi.32l 

83.  In  a  suit  to  recover  a  prize  drawn  in  a 
lottery,  the  scheme  of  the  lottery  and  a 
copy  of  the  bond  for  complying  with  the 
law,  filed  in  the  secretary's  office  and  co- 
pied into  the  book  of  executive  minutes, 
are  evidence  against  the  proprietor  of  the 
lottery,  without  proof  that  he  had  exe- 
cuted the  bond  or  deposited  the  scheme : 
it  being  at  the  same  time   shewn  that 
there  was  no  other  bond  or  scheme  in 
the  office.  ib. 

84.  The  oath  of  a  person  who  attended  the 
drawing  of  a  lottery,  is  the  best  evidence 
that  a  particular  number  drew  a  certain 
prize.  ib. 

85.  The  registry  of  births  and  deaths,  kept 
by  a  religious  society,  is  evidence  ;  but  it 
must  be  proved  at  common  law.  A  copy 
under  the  seal  of  the  corporation,  is  not 
evidence.  Stoever  v.  Lessee  of  Whitman, 

vi.  416 

86.  A  recital  in  a  deed,  that  certain  land 
had  become  the  property  of  D,  is  evidence 
against  the  grantor  (though  not  conclu- 
sive) that  1)  had  a  fee  simple  in  the  land; 
and  if  the  deed  further  recites,  that  D's 
estate  had  been  divested  by  an  entry  of 
the  grantor  for  breach  of  condition,  one 
who  claims  under  D  (but  not  under  the 
deed)  is  not  estopped  from  denying  this 
recital,  by  having  availed  himself  of  the 
first  as  evidence  of  D's  estate.  ib. 

87.  A  verdict  in  a  former  ejectment  is  evi- 
dence against  the  defendant,  although  no 
judgment  has  been  entered,  if  he  has  ac- 
quiesced in  it  by  paying  the  costs  and 
delivering  the  possession.      Shaejfer   v. 
Kreitzer,  vi.  430 

88.  A  ivill  of  land  which  has  accompanied 
the  possession  ttiirly  years,  is  evidence, 
without  proof  of  its  execution.  Shaller  v. 
Brand,  v>-  435 

89.  If  the  same  writing  that  admits  the  sur- 


GENERAL  INDEX. 


567 


vivorship  of  the  wife,  and  her  being  still 
alive,  asserts  that  she  has  released  her 
dower,  and  it  is  used  as  evidence  at  all, 
it  is  evidence  that  the  right  of  dower  is 
not  outstanding.  Shatter  v.  Brand,  vi.  435 

90.  In  an  action  for  mesne  profits,  the  re- 
cord of  the  judgment  in  ejectment  is  con- 
clusive evidence  that  the  defendant  was 
in  possession  at  the  time  the  ejectment 
was  brought,  and  also  as  to  the  title  dur- 
ing the  whole  time  laid  in  the  demise  ; 
but  it  is  not  evidence  of  the  length  of 
time.-  that  the  defendant  was  in  posses- 
sion. Bailey  v.  Fairplay,  vi.  450 

91.  The  certificate  of  the  commissioners  in 
favour  of  a  Connecticut  claimant,  stating 
that  he  or  those  under  whom  he  claims, 
were  actually  so  settled  and  resident, 
does  not  conclude  a  Pennsylvania  claim- 
ant. Enslin  v.  Bowman,  vi.  462 

92.  Declarations   made  by  the  grantor  to 
the  grantee  after  the  execution  of  a  deed 
of  trust,  but  before  the  grantee  had  ac- 
cepted it,  are  evidence  to  alter  or  con- 
tradict the  trust.  Drum  V.  The  Lessee  of 
Simpson,  vi.  478 

93.  Copy  of  a  cancelled  bond  in  the  defen- 
dant's possession,  is  after  notice  and  re- 
fusal to  produce  the  original,  good  evi- 
dence of  the  matters  contained  in   the 
condition,  without  first  shewing  how  the 
bond  came  to  be  cancelled.  ibid. 

EXCEPTIONS. 

Exceptions  to  the  report  of  auditors  in 
account  render,  are  too  late  after  a  judg- 
ment nisi  upon  the  report  has  become 
absolute  by  the  expiration  of  the  term  in 
which  it  was  entered.  Quart,  whether 
such  exceptions  should  not  be  taken  be- 
lore  the  auditors,  and  prior  to  the  report. 
Gratz  v.  Phillips,  iii.  474 

EXCHANGE. 
See  BILL  OF  EXCHANGE. 

EXECUTION. 

1.  After  an  inquest  has  returned  that  the 
rents  and  profits  will  pay  in  seven  years, 
the  plaintiff  cannot  discontinue  hisjf.  fa. 
and  take  out  a  new  one,  without  leave  of 
the  Court.  M* Cuttough  v.  Guetne r,    i.214 

2.  If  a  plaintiff  levies  a  fi.  fa    upon  the 
defendant's  lands,  and  then  charges  him 
in  execution  upon  a  ca.  sa.,  either  they?. 

fa.  or  ca.  sa.  may  be  set  aside  at  the  elec- 
tion of  the  defendant ;  but  if  he  submits 
to  the  ca.  sa.,  and  obtains  a  discharge 
from  it  by  the  insolvent  law,  then 


fa  and  all  the  proceedings  under  it  are 
gone;  and  if  the  plaintiff  sues  out  a  vendi' 
tioni  exponas  and  sells,  the  Court  will  not 
permit  the  sheriff' to  acknowledge  a  deed 
to  the  purchaser.  Young  v.  Taylor,  ii.  218 

3.  An  execution  within  a  year  and  a  day, 
continues  the  lien  of  a  judgment,  with- 
out resorting  to  a  scire  facias  under  the 
act  of  4th  April  1798.    "  ii.  218 

4.  The  defendant  in  a  suit  before  a  justice 
of  the  peace,  is  entitled  to  enter  special 
bail  to  obtain  a  stay  of  execution,  after 
the  twenty  days  allowed  for  an  appeal 
have  expired,  provided  an  execution  has 
not  already  issued.  Mann  v.  Jllberti,  ii.  195 

5.  If  execution  is  stayed  by  agreement  of 
the  parties,  the  "  year  and   day"   runs 
only  from  the  time   when  such  stay  ex- 
pires; and  this,  whether  there  is  an  entry 
of  the  cesset  on  the  record,  or  it  is  a  mat- 
ter of  private  arrangement  out  of  court. 
The  Court  will   take  notice  of  such  an 
agreement,  though  it  is  not  on  record. 
Lessee  of  Dwilop  v.  Speer,  iii.  169 

6.  Supposing  a  single  judge  of  the  Common 
Pleas  to  have  a  right  to  discharge  a  de- 
fendant who  is   in   execution  from  that 
court,  still  if  he  does  it  without  notice  to 
the  plaintiff,  the  proceeding  is  void,  and 
the  defendant  may  be  retaken  in  execu- 
tion. Hecker  v.  Jarret,  iii.  404 

7-  If  a  defendant  upon  being  first  taken  in 
execution,  omits  to  shew  property  upon 
which  a  levy  may  be  made,  and  he  is 
afterwards  illegally  discharged  and  re- 
taker,  upon  the  same  execution,  an  offer 
to  shew  property,  is  then  too  late.  ibid. 

8.  Notwithstanding  the  acts  of  assembly 
which  exempt  the   person  of  a  debtor 
from  execution  if  he  has  property  suffi- 
cient for  the  debt,  the  plaintiff  may  take 
out  a  ca.  sa.  in  the  first  instance,  at  his 
peril.  iii.  407 

9.  If  special  bail  has  been  entered  at  the 
commencement  of  a  suit,  in  a  sum  suffi- 
cient  to  secure   the  amount  which  has 
been  awarded  by  arbitrators  in  the  cause, 
it  is  not  necessary  for  the  defendant  to 
enter  special  bail  de  novo  to  entitle  him- 
self to  a  stay  of  execution  for  thirty  days 
under  the  acts  of  assembly.  Perlasca  v. 
Spargftla,  iii.  427 

10.  Where   one  plaintiff  dies  after  judg- 
ment, the  survivor   may  have  execution 
without  scire  facias,  suggesting  the  death 
of  his  co-plaintiff  on  the  record,  or  recit- 
ing it  in  the  writ.     Secus,  if  the  survivor 
is  a  feme,  who  afterwards  takes  baron. 
Berry  hill  v.  Wells,  \.  56 

11.  A  return  to  a/,  fa.  "  levied  on  grain, 


568 


GENERAL  INDEX. 


"  household  furniture  &c.  (described) 
"  and  left  at  the  plaintiff's  risk,"  is  not 
evidence  that  the  judgment  was  com- 
pletely satisfied,  so  as  to  snake  an  alias 
for  the  residue  void.  Little  v.  The  Lessee 
cfDelancey,  \.  266 

12.  A  general  return  of  "  levied  on  goods 
"  as  per  inventory,"   does  not,  by  the 
practice  in  Pennsylvania,  discharge  the 
defendant,  and  make  the  sheriff  liable  for 
the  whole  debt.  He  is  liable  only  for  the 
value  of  the  goods  upon  which  a  levy 
•was  made,  or  might  have  been -made; 
and  on  his  paying  the  nett  sales,  an  alias 
goes  for  the  residue,  without  application 
to  the  Court.  ibid. 

13.  A  defendant  is  not  entitled  to  a  stay  of 
execution  under  the   act  of  the  21st  of 
March  1806,   upon  the  ground  of  his 
being  a  freeholder,  unless  he  has  a  free- 
hold in  the  county  whrre  the  judgment 
is  obtained.  The  Commonwealth  v.  Mere- 
dith, v.  432 

14.  The  goods  of  a  tenant  taken  in  execu- 
tion upon  the  premises,  are  liable  to  the 
payment  of  rent  to  the  landlord,  up  to 
the  time   they  are   taken   in  execution, 
though  it  be  in  the  middle  of  a  quarter  ; 
but  not  up  to  the  time  of  sale.  Binns  v. 
Hudson,  v.  505 

15.  To  entitle  a  defendant  to  plead  his  free- 
hold under  the  act  of  21st  March  1806, 
he  must    have  a  freehold  worth    the 
amount  of   the    judgment,    and    upon 
which  there  is  no  incumbrance.  It  is  not 
sufficient    that    the    freehold   may    be 
thought  equal  to  the  judgment,   after 
paying  all  incumbrances.   Girardv.  Heyl, 

vi.  253. 

EXECUTOR. 

See  ARBITRATION,  12. 
EVIDENCE,  12. 
ERROR,  5. 

1.  A  power  to  A  and  his  executors  to  sell, 
may  be  executed  by  the  executor  of  A's 
executor.  Lessee  of  Smith  v.  Folwell,  i.  546 

2.  The  bare  appointment  of  an  executor  is 
prima  facie  evidence  that  the  residue  of 
the  personal  estate  undisposed  of  by  the 
•will,  is  given  to  him  beneficially.  Grosser 
V.  Eckart,  i.  575 

3.  Where  the  residue  of  a  testator's  perso- 
nal estate  is  not  disposed  of  by  the  will, 
it  is  always  a  question  of  intention,  whe- 
ther the  executors  take  beneficially,  or 
as  trustees.  i.  575 

4.  A  testator  orders  all  his  debts  and  fune- 
ral expenses  to  be  paid,  and  gives   his 
wife  700/.,  and  the  use  of  his  real  estate, 


until  his  only  child,  a  son  then  about  five 
years  old,  shall  be  fifteen.  He  gives  his 
son  15A,  a  few  specific  legacies,  and  all 
his  real  estate,  and  then  orders  the  resi- 
due of  his  personal  estate,  except  a  table 
and  two  stoves,  to  be  sold  by  his  execu- 
tors at  public  sale,  as  soon  as  may  be 
after  his  death,  to  the  best  advantage, 
and  makes  his  wife  and  two  friends  ex- 
ecutors. They  take  as  trustees  for  the 
next  of  kin-  i.  575 

5.  An  executor  who  receives  the  surplus 
proceeds  of  his  testator's  land  which  has 
been  sold  under  execution,  is  chargeable 
with  them  in  account  as  executoi ,  not- 
withstanding he  is  husband  of  the  devi- 
see of  one  half  the  estate,  and  claims  to 
have  received  them  in  that  character. 
Guier  v.  Kelly,  ii.  294 

6.  If  an  executor  purchase  the  real  estate 
of  his  testator  at  sheriff's  sale,  and  it  is 
afterwards  sold  again,  in  consequence  of 
his  not  adhering  to  his  purchase,  ht  is 
chargeable  in  account  with  the  largest 
of  the  sums  at  which  it  was  struck  off. 

ii.  294 

7.  The  plaintiff   may   proceed  against   an 
executor,  by  capias  to  compel  an  appear- 
ance; but  if  he  elects  to  proceed  by  sum- 
mons, then,  in  order  to  entitle  himself  to 
judgment  bynildidt,  he  must  pursue  the 
act  of  20th  March  1724-5,  as  if  the  suit 
were  against  a  freeholder.  Fitzsimons  v. 
Salomon,  ii.  436 

8.  The  testator  appointed  A,  B  and  C  his 
executors,  and  gave  them  power  to  sell 
his  land  by  the  following  clause  :  "  The 

'  executors,  namely,  A,  JB,  and  C,  shall  be 
'  empowered  to  sell  my  land,  and  to  give  a 
'good  rt^ht.  When  my  debts  are  paid,  if 
'  any  thing  should  remain,  my  wife  shall 
'  keep  &c."  Two  of  the  executors  re- 
fused to  act.  Held,  that  the  third  had  au- 
thority to  sell.  Lessee  of  Zebach  v.  Smith, 

iii.  69 

9.  There  is  nothing  in  the  defalcation  act 
of   Pennsylvania    to    exclude    a   sett-off 
either  by  or  against  an  executor  or  ad- 
ministrator. Murray  v.  Williamson,  iii.  135 

10.  An  executor  in  the  state  of  Pennsylvania 
has  always  been  a  trustee  for  the  next  of 
kin,  as  to  all  the  personal  property  of  a 
testator  not  disposed  of  by  his  will.  Wil- 
son v.  Wilson,  iii.  557 

11.  Money  had  and  received  will  lie  against 
an  executor  in  his  personal  character,  to 
recover  a  distributive  portion  of  a  testa- 
tor's  estate,  not  disposed  of  by  his  will, 
and  which  has  come  to  the  executor  aa 
trustee  for  the  next  of  kin  ibid. 

12.  Assets  are  a  sufficient  consideration  for 


GENERAL  INDEX. 


569 


a  personal  promise  by  one  who  is  execu 
tor,  to  pay  a  legacy,  and  to  charge  him 
de  bonit  propriis.  Clark  v.  Herring,  v.  33 

13.  An  executor  is  not  liable  to  an  action 
for  a  legacy  while  the  prdbate  of  the  will 
is  suspended  by  appeal ;  nor  will  an  ac- 
tion commenced  during1  that  period,  ac- 
quire validity  by  the  subsequent  confir- 
mation of  the  will.  Hantz  v.  Scaly,  vi.  405 

EXTINGUISHMENT. 
See  RENT,  1. 

A  judgment  in  trover  against  the  sheriff1,  is 
neither  an  extinguishment  of  his  official 
security,  nor  a  bar  to  a  suit  against  his 
sureties.  It  is  but  one  of  several  reme- 
dies, which  the  injured  party  may  use 
successively,  until  he  obtains  satisfaction. 
Carmack  v.  Common-wealth,  v.  184 

FACTOR. 
See  MONEY  HAD  AND  RECEIVED,  1. 

FARM. 

Two  detached  pieces  of  land  occupied  as 
one  farm,  are  within  the  meaning  of  the 
first  section  of  the  act  of  17th  March 
1806,  which  prohibits  certain  turnpike 
companies  from  taking  tolls  from  any 
person  when  passing  from  "  one  part  of 
the  farm  to  the  other,"  along  the  turnpike- 
road.  Common-wealth  v.  Carmalt,  ii.  235 

FEES. 
See  SURVEYOR. 

1.  The  prothonotary  of  a  court  cannot  bring 
an  action  to  recover  his  fees,  in  a  cause 
•which  is  still  pending.  Lyon  v.  JWManus, 

iv.  167 

2.  The  uniform  practice  under  the  act  of 
assembly  of  1795  and  long  before,  has 
been  to  pay  for  original  writs,  writs  of 
removal,  &c.  at  the  time  they  are  taken 
from  the  office.  But  the  general  fees,  as 
for  filing  declarations  and  pleas,  issuing 
writs  of  venire  and  distringas,   entering 
rules,  &c.,  are  not  due  until  the  termi- 
nation of  the  suit.  ibid. 

3.  It  seems  that  the  plaintiff  is  liable  to  the 
officers  for  their  fees,  where  they  cannot 
be  procured  from  the  defendant.        ibid. 

4.  A  justice  of  the  peace  has  jurisdiction 
of  a  suit  by  an  officer  to  recover  his  fees, 
provided  their  amount  does  not  exceed 
one  hundred  dollars.  ibid. 

FEIGNED  ISSUE. 

1.  A  writ  of  error  lies  from  the  Supreme 
VOL.  VI. 


Court  to  a  judgment  of  the  Common 
Pleas  upon  a  verdict  in  a  feigned  issue. 
Vansant  v.  Boileau,  i.  444 

2.  The  court  which  tries  the  feigned  issue, 
and  not  the  register's  court,  has  the 
right  to  order  a  new  trial.  i.  444 

FEME  COVERT. 

A  lease  to  a  feme  covert  is  good,  unless  her 
husband  expressly  dissents.  If  his  as- 
sent may  be  inferred  from  circumstances, 
or  if  the  stipulations  in  the  lease  on  the 
part  of  the  feme  are  performed,  the  les- 
sor and  those  claiming  under  him  are 
bound  by  the  lease.  Baxter  v.  Smith, 

vi.  427 

FI.  FA. 
See  EXECUTION,  1,  2.  H. 

FINE. 
See  ERROR,  20. 

INDICTMENT,  6. 

FISHERY. 

1.  The  common  law  doctrine,  that  fresh 
water  rivers,  in  which  the  tide  does  not 
ebb  and  flow,  belong  to  the  owners  of  the 
banks,  has  never  been  applied  to  the 
Sus(fuehanna,  and  other  large  rivers  in 
Pennsylvania.  Such  rivers  are  navigable, 
although  there  is  no  flow  and  reflow  of 
the  tide,  and  they  belong  to  the  Com- 
monwealth. No  one  therefore  has  a  right 
to  an  exclusive  fishery  therein,  on  the 
principles  of  the  common  law,  nor  has 
such  a  right  been  granted  to  any  one,  by 
the  proprietaries,  or  by  the  Common- 
wealth. Carson  v.  Blazer,  ii.  475 

2-  In  a  petition  for  a  partition  of  an  estate, 
it  is  not  essential  to  state  the  fisheries 
that  may  belong  to  it.  It  is  enough  if  the 
inquest  take  them  into  view  in  their 
valuation.  Elliot  v.  Elliot,  v.  1 

FORBEARANCE. 
See  AGREEMENT,  3. 

A  promise  to  forbear  suit  in  general  terms, 
is  to  be  understood  a  total  and  absolute 
forbearance.  Hamaker  v.  Eberly,  ii.  506 

FORCIBLE  ENTRY. 
See  COSTS,  13. 

FOREIGN  ATTACHMENT. 
See  ATTACHMENT  FOREIGN. 
4C 


570 


GENERAL  INDEX. 


FOREIGN  SENTENCE. 
See  EVIDENCE,  9. 

FORFEITURE. 

See  CURTESY. 

FORGERY. 

1.  The  publishing  a  forged  note  of  hand,  or 
any  other  writing  of  a  private  nature, 
though  not  under  seal,  as  a  genuine  note 
or  writing,  with  intent  to  defraud,  is  in- 
dictable at  common  law.   Commonwealth 
v.  Searle,  ii.  332 

2.  The  publishing  a  counterfeit  note  of  the 
Bank  of  North  America  with  intent  to 
defraud,  is  indictable  at  common   law, 
and  is  punishable  by  imprisonment  at 
hard  labour  under  the  acts  of  9th  April 
1790,  and  4th  April  1807.  ii.  332 

3.  Notwithstanding  the  expiration  of  the 
corporate  powers  of  the  late  Hank  of  the 
Untied  States,  it  is  still  punishable  within 
the  act  of  22d  April  1794,  to  pass  a  coun- 
terfeit note  of  that  bank  ;  and  any  forged 
note,  counterfeiting  a  genuine  note  of 
that  bank  issued  during  the  existence  of 
its  corporate  powers,  is  a  counterfeit  note 
of  that  bank.  White  v.  The  Commonwealth, 

iv.  418 

FRAUD. 

See  CREDITORS. 

DEED,  3. 

FRAUDS  AND  PERJURIES. 

1.  A  parol  partition  between  tenants  in  com- 
mon, made  by  marking  a  line  of  division 
on  the  ground,  and  followed  by  a  corres- 
ponding separate    possession,  is   good, 
notwithstanding   the  act  of  frauds  and 
perjuries.  Ebert  v.  Wood,  i.  216 

2.  A  parol  gift  of  lands  by  a  father  to  his 
son,  accompanied  with  possession,  and 
followed  by  the  son's  making  improve- 
ments on  the  land,  is  valid.  Lessee  ofSyler 
v.  Eckart,  i.  378 

3.  A  parol  contract  for  the  sale  of  lands,  is 
good  under  the  act  of  frauds  and  perju- 
ries, to  support  an  action  for  damages 
So  a  written  contract  with  an  agent  who 
has  merely  a  parol  authority.     Swing  v 
Tees,  i.  450 

4.  The  act  of  frauds  and  perjuries  does  not 
prevent  a  declaration  of  trust  by  parol 
Lessee  of  German  v.  Gabbald,          iii.  30< 

5.  Where  a  parol  sale  of  lands  has  been 
made,  money  paid,  and  possession  deli- 
vered, the  contract  is  good  between  the 
parties  ;  but  to  make  it  good  against  a 


bona  Jide  purchaser,  there  must  be  clear 
evidence  of  notice  to  him,  either  actual 
or  legal.  Legal  notice  exists  only  where 
there  is  a  violent  presumption  af  actual 
notice.  Undisturbed  possession  by  the 
equitable  owner,  has  generally  been  con. 
sidered  as  legal  notice ;  but  it  must  be 
a  clear  unequivocal  possession.  Hence, 
where  A  bought  by  parol  from  B,  a  cor- 
ner of  _B'«  tract,  paid  for  it,  was  put  into 
possession  and  had  buildings  erected, but 
at  the  same  time  had  no  survey  of  the 
part,  or  other  admeasurement  to  reduce 
it  to  certainty,  and  on  £'so\vn  part  there 
was  a  forge,  dwelling  house,  grist  and 
saw  mill,  and  buildings  for  the  workmen, 
which  with  Jfs  buildings,  might  strike 
the  eye  as  one  establishment,  the  posses- 
sion of  A  was  held  not  be  legal  notice 
of  his  title  to  a  purchaser  at  sheriff's 
sale,  under  a  judgment  against  B.  The 
equity  of  a  second  purchaser  will  prevail 
over  such  a  title  as  Jf»,  under  these  cir- 
cumstances, particularly  if  A  gave  no 
actual  notice  of  his  title,  when  he  proba- 
bly knew  of  the  judgment,  execution 
and  sale.  Lessee  of  Billington  v.  Welsh, 

v.  129 

FREEHOLD. 
See  EXECUTION,  13. 

To  entitle  a  defendant  to  plead  his  freehold 
under  the  act  of  21st  March  18u6,  he 
must  have  a  freehold  worth  the  amount 
of  the  judgment,  and  upon  which  there 
is  no  incumbrance.  It  is  not  sufficient 
that  the  freehold  may  be  thought  equal 
to  the  judgment,  after  paying  all  incum- 
brances.  Girurd  v.  Heyl,  \\.  253 

FREEHOLDER. 

A  capias  may  issue  for  any  cause  of  action 
whatever  against  a  freeholder,  who  ne- 
glects to  put  in  special  bail  upon  notice. 
Jack  V.  Shoemaker,  iii.  280 

FREIGHT. 

See  INSURANCE,  23,  24.  36.  39. 

LIEN,  8,  9. 

1.  A  cargo  of  flour  and  wheat  was  shipped 
from  Philadelphia  to  Fayal,  and  from 
thence  at  the  discretion  of  the  shippers 
to  two  other  ports  ;  ten  running  days  to 
be  allowed  at  each  port  the  vessel  might 
stop  at,  to  determine  upon  the  expedi- 
ency of  unlading  or  proceeding,  and 
twenty-five  working  days  at  her  port  of 
discharge,  for  the  discharge  of  her  cargo. 
In  case  of  further  detention,  a  demurrage 
of  fifty  dollars  per  day  to  be  allowed  for 
every  day  she  was  detained,  which  should 


GENERAL  INDEX. 


571 


viotbe  longer  than  thirty  days.  Freight  at 
the  rate  of  one  dollar  and  seventy-five 
cents  per  barrel,  if  she  discharged  at 
Fayal,  and  twenty-five  cents  for  each 
subsequent  port.  The  vessel  arrived  on 
14th  of  February  at  Cadiz,  which  was 
selected  as  her  port  of  discharge;  and  on 
the  17th  the  captain  desired  and  offered 
to  unlade  the  cargo.  The  supercargo 
refused  to  receive  it,  insisting  on  his 
right  to  keep  it  on  board  the  twenty-five 
days,  and  within  this  period  the  vessel 
and  cargo  were  lost.  Held,  that  the  su- 
percargo was  not  bound  to  receive  the 
cargo  during  the  twenty-five  working 
days,  and  it  being  lost  within  that  period, 
no  freight  was  earned,  notwithstanding 
there  had  been  time  and  opportunity  and 
an  offer  by  the  captain  to  discharge  it. 
Lacombe  v.  Wain,  iv.  299 

2.  Qiixre,  whether  freight  is  earned  when 
the  working  days  at  the  port  of  dis- 
charge expire ;  or  whether  it  is  not 
contingent  during  the  days  allowed  on 
demurrage,  and  even  until  the  cargo  is 
actually  landed,  if  the  landing  is  not  pro- 
hibited, ibid. 

FUGITIVE  FROM  JUSTICE. 
See  LARCENY,  4. 

GARNISHEE. 

1.  If  the  garnishee  in  a  foreign  attachment 
pay  over  to  the  plaintiff  the  debt  attach- 
ed, without  being  compelled  by  due  pro- 
cess of  law,  and  without  requiring  the 
stipulation  ordered  by  act  of  assembly, 
it  will  not  discharge  him  from  the  origi- 
nal debt.  Myers  v.  Urich,  i.  25 

2.  Upon  the  plea  of  milla  bona  by  a  garni- 
sh ee,  the  j  ury  must  find  the  specific  goods 
in  his  hands.    A  verdict  finding  goods  of 
a  certain  value  in  his  hands  is  bad.     But 
if  they  find  the  goods,  they  may  also  find 
their  value  to  save  the  necessity  of  a  spe- 
cial inquest.   Crawford  v.  Barry,      i.  481 

GENERAL  AVERAGE. 
See  AVERAGE  GENERAL. 

GENERAL  WARRANTY. 

A  sells  several  lots  of  land  for  a  sum  of 
money,  payable  by  instalments,  and  co- 
venants to  convey  with  general  warran- 
ty, on  payment  of  the  whole  money.  He 
then  conveys  the  lots  to  C  and  7>  with 
general  warranty,  in  trust  to  convey  them 
to  the  vendee  in  fee  simple,  as  soon  as 
the  purchase  money  and  interest  should 
be  paid  according  to  contract,  and  de- 


livers them  the  obligations  for  the  mo- 
ney. Zfr/ic/ that  this  convejance  is  no  im- 
pediment to  a  suit  in  A's  name  for  the 
recovery  of  the  money,  nor  to  an  appor- 
tionment of  the  purchase  money,  if  title 
to  some  of  the  lots  fails.  Stoddart  v.  Smith, 

v.355 

GRAND-CHILDREN. 
See  LEGACY,  7. 

GROUND  RENT. 

A  ground  landlord  does  not  lose  his  lien  for 
the  rent  due,  by  taking  a  bond  and  war- 
rant of  attorney  for  the  arrears,  and  en- 
tering up  judgment.  Gordon  v.  Correv, 

v.  552 

GUARANTY. 

A  requested  B  to  give  C  any  assistance  in 
the  purchase  of  goods,  by  letter  or  other- 
wise, saying  "  you  may  consider  me  ac- 
"  countable  -with  him  to  you,  for  any 
"  contract  he  may  make."  Held,  that  a 
contract  by  C  to  pay  B  a  premium  for 
guaranteeing  a  contract  by  C  with  a  third 
person,  was  within  A's  promise,  but  that 
it  did  not  make  A  a.  joint  debtor  with  C 
to  B.  Meadev.  M' Do-well,  v.  195 

GUARDIANS  OF  THE  POOR. 

See  CLERGYMAN. 

HABEAS  CORPUS  ACT. 

1.  The  penalty  for  recommitting  a  person 
who  has  been  once  delivered  for  the  same 
cause  on  a  habeas  corpus,  is  limited  tore- 
commitments  for  the  same  criminal  of- 
fence, and  is  not  incurred  by  taking  the 

party  a  second  time  in  custody  upon  civil 
process.  Hecker  v.  Jarrett,  i.  374 

2.  The  habeas  corpus  act  of  1785  extends 
to  commitments    under    civil    process. 
Hecker  v.  Jarrett,  iii.  404 

3.  The  Supreme  Court  is  not  bound  by  the 
act  of  1785  to  grant  a    habeas  corpus, 
where  the  case  has  been  already  heard 
by  another  court,  upon  the  same  evi- 
dence that  is  suggested  to  this.   It  is  not 
expedient  to  grant  it  where  the  case  has 
been  once  so  heard,  and  the  party  has  a 
remedy  by  homing  replegiando.   Ex  parte 
Lawrence,  v.  304 

4.  If  a  person  is  committed  to  prison  by  a 
justice  of  the  peace  or  a  judge  of  a  state 
court,  for  an  offence  against  the  United 
States,   this    Court  may  issue  a  habeas 
corpus,  and  discharge  him  altogether,  or 
admit  him  to  bail  i  unless  he  is  charge- 


572 


GENERAL  INDEX. 


able  with  an  offence  punishable  with 
death,  in  which  case  they  cannot  admit 
him  to  bail.  The  Commomueatth  v.  Hollo- 
way,  v.  512 

5.  Although  the  Supreme  Court  is  bound 
to  deliver  all  persons  by  the  writ  of  ha- 
beas corpus,  from  illegal  restraint ;  yet 
they  are  not  bound  to  decide  who  is  en- 
titled to  the  guardianship  of  children,  or 
to  deliver  them  to  the4;ustody  of  the  fa- 
ther, even  where  he  has  been  divorced 
from  the  mother,  on  account  of  her  adul- 
tery ;  but  they  may  in  their  discretion 
do  so,  if  they  think  proper.  The  Com- 
monwealth v.  Addicks,  v.  520 

HABERE  FACIAS. 

If  the  sheriff  upon  an  habere  facias  delivers 
to  the  plaintiff  the  proportion  that  he  has 
recovered  in  ejectment,  and  after  the  re- 
turn day  of  the  writ  the  plaintiff  ousts 
the  defendant  of  the  whole,  the  court 
will  not  restore  the  defendant  in  a  sum- 
mary way.  But  it  seems  otherwise,  if 
there  is  an  actual  ouster,  before  the  re- 
turn day  of  the  writ.  Lessee  of  Gardiner 
v.  Bridge  Company,  ii.  450 

HARD  BARGAIN. 
The  plaintiff  brought  his  ejectment  upon 
an  equitable  title,  which  although  per- 
haps  not  unfairly  obtained  from  the  de- 
fendant, was  accompanied  by  some  sus- 
picious circumstances,  and  at  all  events 
was  very  indiscreetly  bartered  away  by 
the  defendant.  The  jury,  although  in- 
structed that  the  contract  was  lawful, 
found  a  verdict  for  the  defendant,  which 
the  court  refused  to  set  aside.  Campbell 
v.  Spencer,  ii.  129 

HEIR. 
See  INTESTATE,  1. 

1.  The  heir  at  common  law  takes  the  real 
estate  of  his  intestate  ancestor,  except  in 
the  specific  cases  enumerated  in  the  acts 
for  regulating  the  estates  of  intestates. 
Cresoe  v.  Laidley,  ii.  285 

2.  Heir  is  nomen  collectivum  in  a  will  if  not 
in  a  deed,  and  the  same  as  heirs.  Lessee  of 
Hall  v.  Vandegrift,  iii.  374 

HUSBAND  AND  WIFE. 
See  BARON  AND  FEME. 

IMPLIED  PROMISE. 

An  express  agreement  prevents  the  impli- 
cation of  a  promise,  which  the  law  would 


otherwise  make.    Duncan  v.  Keiffer,  iii. 

126 

IMPROVEMENT. 

See  EJECTMENT,  2. 

WARRANT  AND  SURVEY,  25. 

1.  An  improvement  made  on  lands  not  pur- 
chased from  the  Indians,  does  not  vest  a 
title.  Lessee  of  Kyle  v.  White,  i.  246 

2.  An  improvement  and  settlement  on  lands 
purchased  from  the  Indians  in  Novem- 
ber 1768,  made  between  that  date  and 
the  opening  of  the  land  office  on  the  3d 
April  \i  69,  gives  no  preference  to  the 
settler  against  a  descriptive  application 
entered  in  the  land  office  on  the  day  it 
opened.    Lessee  of  Buchanan  v.  Maclvre, 

i.  385 

3.  0>uiere,   whether   a    person  residing  on 
one  tract  can  make  a  legal  settlement  by 
a  tenant  on  another,  so  as  to  acquire  a 
legal  settlement  right  to  it  ?    Lessee  of 
Blainev.  Johnson,  iii.  103 

4.  Title  by  settlement  and  improvement, 
though  at  different  times   it   has  been 
in  some  measure  shaken,  is  now  as  well 
established    as    any  species  of    title  in 
Pennsylvania,    and  very  often   has  been 
preferred  to  warrant,  survey  and  patent. 
Lessee  of  Bonnet  v.  Devebaugh,        iii.  175 

5.  An  improvement  right  is  no  more  than 
a  right  of  pre-emption,  wiiich  may  be 
abandoned    at  the  pleasure   of  the  im- 
prover, lessee  of  Magens  v.  Smith,  iv.  73 

6.  The  owner  of  an  improvement  right,  is 
entitled  to  three  hundred  acres,  and  may 
take  as  much  less  as  he  pleases  ;  but  af- 
ter he  has  ascertained  the  extent  of  his 
right  by  a  survey,  though  it  fall  short  in 
any  degree  of  three  hundred  acres,  the 
general  rule  is,  that  he  cannot  after  wards 
extend  his  limits.   If  however  he  has,  by 
consent  lines  between  him  and  his  neigh- 
bours, ascertained  the  limits  of  his  claim, 
and  afterwards,  being  unable  to  pay  for 
the  whole  at  once,  lias  a  survey  made 
upon  part  only,  it  seems  that  the  residue 
of  the  land  within  his  claim,  is  not  to  be 
considered  as  relinquished,  but  he  may 
subsequently  cover  it  by  a  new  survey. 
.Lessee  of  Davis  v.  Keefer,  iv.  161 

7.  A  mere  improvement  upon  land  is  no 
authority  under  the  act  of  22d  of  Septem- 
ber 1794,  for  a  warrant.  An  improvement 
may  be  made  by  clearing  land,  and  .cul- 
tivating it,  without  residing  on  it.    The 
act  requires  a  settlement,  which  implies 
actual  residence.  Bixler  v.  Baker,  iv.  213 

8.  Title  by  improvement  is  merely  a  right 
of  pre-emption,   until  the  purchase  is 


GENERAL  INDEX. 


573 


made  from  the  Commonwealth.  Up  to 
that  time,  possession  is  not  adverse  fo,but 
under  the  Commonwealth  j  and  therefore 
though  it  continue  twenty-one  years,  it 
is  no  bar  by  the  Statute  of  Limitations 
to  the  Commonwealth,  or  her  grantee. 
Morris  v.  Thomas,  \.  77 

9.  An  accidental  clearing  over  the  boundary 
of  patented  land,  vests  no  interest  in  the 
vacant  lands  of  the  Commonwealth,     ib. 

10.  A  clearing  of  land  belonging  to  the 
Commonwealth,  without  a  bona  Jlde  set- 
tlement, does  not  vest  a  right  by  improve- 
ment, ibid. 

11.  Before  a  settler  ascertains  his  bounda- 
ries by  warrant  and  survey,  he  may,  so 
far  as  concerns  his  neighbours,  ascertain 
his  limits  by  lines  marked  on  the  ground. 
These  lines  are  notice  to  the  neighbour- 
hood, and  unless  some  particular  objec- 
tion should  occur  to  them,  must  be  ad- 
hered to,  when  the  title  comes  to   be 
completed  by  warrant,   survey  and  pa- 
tent. It  is  therefore  competent  for  one  of 
two  interfering  settlers,  to  give  evidence 
that  before  the  other  had  taken  out  a 
•warrant,  the  former  had  declared  his  in- 
tention to  extend  his  claim  in  a  certain 
direction  by  a  marked  line,  of  which  the 
other  had  notice.     Gordon  v.  Lessee   of 
Moore,  v.  136 

12.  A  settlement  made  on  lands  not  pur- 
chased from  the  Indians,  cannot  be  the 
foundation  of  any  title,  legal  or  equitable, 
unless  connected  with  a  special  promise 
from  the  proprietaries  or  their  agents. 
White  v.  Lessee  of  Kyle,  v.  162 

13.  A  warrant  calling  for  an  improvement 
made  by  A,  cannot  be  supported  by  an 
improvement  made  by  If,  nor  can  it  be 
so  connected  with  any  after  purchased 
improvement  as  to  vest  a  title.  ibiJ. 

14.  Persons  settled  upon  land  not  purchas- 
ed of  the  Indians,  and  receiving  from  the 
proprietary  agent  a  promise  of  confirma- 
t  ion, were  bound  to  apply  for  the  confirma- 
tion at  the  opening  of  the  land  office  for 
those  lands,  or  within  a  reasonable  time 
afterwards,  or  they  lost  the  benefit  of  the 
promise.  ibid. 

15.  A  made  application  to  the  secretary  of 
the  land  office  for  a  tract  of  land  particu- 
larly described,  lying  north  and  west  of 
the  Ohio,  &.c.   On  the  3d  of  April  1792,  a 
warrant  issued,  which  by  mistake  of  the 
office,  was  filled  up  with  lands  lying  else- 
where.    On  the  10th  of  April  1792,  the 
warrant   was    delivered  to  the   deputy 
surveyor  of  the  district,  who,  perceiving 
the  mistake,  did  not  enter  the  warrant  in 
his  book  according  to  its  description,  but 
according  to  the  description  in  the  appli- 


cation, and  surveyed  on  the  29th  of  Au- 
gust following.  Prior  to  the  survey,  but 
subsequent  to  the  10th  of  April,  B  made 
a  bona  Jide  actual  settlement  upon  the 
same  land.  Held,  that  the  entry  made  by 
the  deputy  surveyor  had  no  effect  against 
third  persons,  and  that  >B  was  entitled  to 
recover.  Lessee  of  Dawson  v.  Bigsby, 

v.  204 

16.  An  actual  settler  cannot  maintain  an 
ejectment  for  his  improvement,  without 
an  official  survey,  or  a  private  one,  if  by 
due  exertion  he  was  unable  to  obtain  the 
former.  Stochman  v.  Blair,  v.  211 

INDICTMENT. 

See  LIBEL,  2. 
COSTS,  13. 

1.  An  indictment  for  stealing  two  ten  dollar 
notes  of  the  president,  directors  and  compcny 
of  the  Bank  of  the   United  States,  is  bad. 
They  should  be  laid  to  be  promissory 
notes  for  the  payment  of  money.     The 
Crsmmonweatth  v.  Boycr,  i.  201 

2.  Quxre,  Whether  an  indictment  is  bad  for 
laying  bar.k  notes,  as  the  goods  and  chat- 
tels of  the  prosecutor.  i.  201 

3.  Where  a  statute  creates  or  expressly  pro- 
hibits an  offence,  and  inflicts  a  punish- 
ment, the  statute  punishment  cannot  be 
inflicted,  unless  the  indictment  concludes 
contra  formam  statnti  ;  otherwise   when 
the  statute  only  inflicts  a  punishment,  on 
that  which  was  an  offence  before.    Com- 
mon-wealth v.  Searle,  ii.  332 

4.  In  an  indictment  for  forging  a  bank  note, 
it  is  not  necessary  to  set  forth  the  orna- 
mental parts  of  the  bill,  as  the  devices, 
mottos,  &c.  ib. 

5.  An  indictment  for  stealing  bank  notes 
generally,  under  the  description  of  pro- 
missory notes  for  the  payment  of  money, 
is  bad.     It  should  appear  on  the  face  of 
the  indictment,  that  they  are  bank  notes 
of  some  incorporated  bank,   or  in   some 
way  that  they  are  lawful  notes.    No  un- 
incorporated bank  notes  in  Pennsylvania 
are  at  present  the    subject  of  larceny. 
Spungler  v.  The  Ct/mmonwealth,     iii.  533 

6.  An  indictment  for  erecting,  &c.  &mound 
made  of  logs  and  stones,  in  the  river  Sm- 
quehanna,  for  the  taking  of  fish  in  the  said 
river,  to  the  great  obstntctinn  and  hindrance 
of  the  fish,  fry  and  spawn  in  passing  up  and 
down  said  river,   and  to  the   common  nui- 
sance of  all  the  liege,  citizens,  &c.  is  within 
the  4th  section  of  the  act  of  the  9th  of 
March  1771,  which  prohibits  the  erection 
&c.of  any  wear,  rack,  basket,dam, pound, 
or  other  device  or  obstruction  whatsoever, 


574 


GENERAL  INDEX. 


tohereby  the  fish  may  be  obstructed  from 
going  up  said  river,  t?*c.  and  therefore  a 
judgment  that  the  fine  shall  be  paid  to 
the  Commonwealth,  instead  of  going  to 
the  informer  and  commissioners  in  that 
section  mentioned,  is  erroneous.  Werfel 
v.  The  Commonwealth,  v.  65 

7.  An  indictment  charged  that  Jl  unlawfully, 
secretly,  and  maliciously,  with  force  and 
arms,  broke  and  entered   at  night  the 
dwelling  house  of  B,  with  intent  to  disturb 
the  peace  of  the  Commonwealth  ;  and 
after  entering  the  house,  unlawfully,  wil- 
fully, and  turbulently,  made  a  great  noise, 
in  disturbance  of  the  peace  of  the  Com- 
monwealtb,  and  did  greatly  misbehave 
in  the   said  dwelling  house,    and   did 
greatly  frighten  and  alarm  the  wife  of  the 
said  B,  whereby  she  miscarried,&c.  Held, 
that  the  offence  laid  was  indictable  as  a 
misdemeanor.    Quaere  whether  the  indict- 
ment could  be  supported  as  describing  a 
forcible  entry.  Common-wealth  v.  Taylor, 

v.277 

8.  An  indictment  charging  that  the  defen- 
dant -with  a  certain  stone  which  he  held, 
in  and  upon  the  right  side  of  the  head  of 
the  deceased,  feloniously,  &c.  did  cast 
and  throw,  and  that  the  defendant  with 
the  stone  aforesaid,  the  deceased  in  and 
upon  the  right  side  of  the  head  feloni- 
ously, &c.  did  strike,  sufficiently  charges 
that  the  defendant  threw  the  stone  and 
struck  the  deceased.    White  v.  Common- 
wealth, vi.  179 

9.  In  an  indictment  for  murder,  it  is  not  ne- 
cessary so  to  describe  the  offence,  as  to 
shew  whether  it  be  murder  of  the  first 
or  second  degree.     Nor  is  it  necessary 
that  the    indictment    should    conclude 
against  the  form  of  the  act  of  assembly. 

ib. 

INFANCY. 

The  court  will  not  discharge  a  defendant 
out  of  custody  upon  the  ground  of  infan- 
cy, where  there  is  no  suggestion  of  fraud 
or  imposition;  but  will  leave  him  to  make 
use  of  that  fact  upon  his.defence.  Clem,' 
son  v.  Rush,  iii.  413 

INFANT. 
See  ENLISTMENT. 

PRACTICE,  37. 

1.  Under  the  act  of  congress  authorizing 
the  President  of  the  United  States  to 
cause  to  be  engaged  certain  able  sea- 
men, ordinary  seamen  and  boys,  to  serve 
in  the  navy,  an  infant  who  has  arrived  at 
years  of  discretion,  and  has  neither  fa- 
ther, master,  nor  guardian,  may  make  a 


valid  contract  to  serve  according  to  the 
act,  notwithstanding  he  has  a  mother, 
with  whom  he  resides  at  the  time,  and 
whose  consent  was  not  given  to  the  con- 
tract. The  Commonwealth  v.  Murray, 

iv.  487 

2.  An  infant  owes  reverence  and  respect  to 
his  mother,  but  she  has  no  legal  autho- 
rity over  him,  nor  any  legal  right  to  his 
services .  ibid. 

3.  Under  the  constitutional  power  of  con- 
gress to  provide  and  maintain  a  navy, 
that  body  may  bylaw  authorize  an  infant 
to   make  a  contract  for  service  in  the 
navy.  ibid. 

4.  If  the  decree  of  an  Orphans'  Court,  or- 
dering the  real  estate  of  an  intestate  at 
the  valuation,  to  his  oldest  son,  be  erro- 
neous, a  minor  is  not  concluded  by  his 
own,  or  his  guardian's  acceptance  of  the 
sum  at  which  his  interest  in  the  estate  is 
valued,  provided  as  soon  as  practicable 
after  his  arriving  at  lawful  age,  he  takes 
the  necessary  steps  to  question  the  pro- 
ceeding. He  is  not  concluded,  though  he. 
accepted  the  purpart  after  he  came  of 
age,  if  he  was  then  ignorant  of  the  wrong 
done  to  him.  Elliot  v.  Elliot,  v.  1 

INFORMATION. 

When  leave  is  granted  to  file  an  informa- 
tion in  the  nature  of  a  quo  warranto,  the 
defendants  must  be  summoned  by  a  ve- 
nire, or  subpoena  ;  and  if  they  fail  to  ap- 
pear, must  be  brought  in  by  distringas  or 
attachment.  An  appearance  upon  the  pre- 
vious rule  to  show  cause,  does  not  put 
them  in  Court  as  to  the  information;  and 
therefore  upon  filing  the  information,  the 
relators  are  not  entitled  to  a  rule  to  plead. 
T/ie  Common-wealth  v.  Sprenger,  \.  353 

INNUENDO. 

The  office  of  an  innuendo  is  to  elucidate 
words,  by  connecting  them  with  the  sub- 
ject to  which  they  refer,  and  averring  a 
meaning  not  inconsistent  with  or  contra- 
dictory to  them,  but  it  cannot  alter  their 
nature.  Shaffer  v.  Kintzer,  L  537 

INQUISITION. 

1.  An  inquisition  is  not  necessary  to  the  sale 
of  an  estate  for  life,  or  of  any  other  estate 
of  uncertain  duration.     Burd  v.  Lessee  of 
Dansdale,  ii-  89 

2.  An  inquisition  cannot  be  supported  un- 
less there  has  been  notice  in  fact  to  the 
defendant,  either  of  the  levy,  or  of  the 
time  and  place  of  holding  the  inquest. 
Heydrick  v.  Eaton,  ii-  215 


GENERAL  INDEX. 


575 


3.  In  a  proceeding  by  a  justice  of  the  peace 
&c.  against  a  turnpike  company,  for  per- 
mitting their  road  to  be  out  of  repair  five 
days,  it  is  necessary  that  it  should  dis- 
tinctly appear  in  the  inquisition  that  the 
road  has  been  out  of  repair  five  days,  and 
that  the  part  of  the  road  complained  of, 
be  stated  to  be  in  the  county  where  the 
justice  has  jurisdiction.  Common-wealth 
v.  Willow  Gro-ve  Co.  ii.  257 

INSOLVENT  DEBTOR. 

1.  A  petitioner  for  relief  under  the  insolvent 
act  of  4th  April,  1798,  must  exhibit  to  the 
court  a  statement  in  writing  of  his  losses, 
and  the  means  whereby  he  became  in- 
solvent. Baker's  case,  i.  462 

2.  A  debtor  who  has  no  property  whatever, 
is  nevertheless  entitled  to  the  benefit  of 
the  insolvent  laws.  i.  462 

3.  The  18th  section  of  the  insolvent  law  of 
April  4th,  1798,  is  intended  to  relieve  all 
persons  in  actual  confinement,  whether 
inhabitants  of  this  state  or  not;  but  anon- 
resident  debtor  must  apply  for  his  dis- 
charge to  the  court  by  whose  process  he 
is  confined.  CroxalCs  case,  i.  589 

4.  If  a  debtor  is  discharged  from  a  debt  by 
the  law  of  the  state  or  territory  where  it 
was  contracted,  and  the  creditor  resides 
in  Pennsylvania  and  arrests  him  here,  the 
rule  is  to  discharge  him  on  common  bail, 
if  the  state  where   the   debtor  was  dis- 
charged, extends  the  same  courtesy  to 
citizens  of  Pennsylvania;  and  it  will  be 
presumed  that  it  does,  until  some  reason 
is  shewn  to  tlie  contrary.  Smith  v.  Brawn, 

iii.  201 

5.  A  debtor  who  is  in  custody  in   conse- 
quence of  a  surrender  by  his  bail,  is  not 
entitled  to  a  discharge,  by  virtue  of  a 
provisional  discharge  from  the  commis- 
sioners of  insolvents  under  the  act  of  13th 
of  March   1812.    The   Common-wealth  v. 
Cornman,  iv.  483 

6.  The  Supreme  Court  cannot  discharge  an 
insolvent  debtor  who  is  in  confinement 
under  process  from  the  district  court  ol 
the  city  and  county.    Lx  parts  Ogle, 

v.  518 

7.  The  Courts  of  Common  Pleas  have  pow- 
er under  the  act  of  14th  February  1729 — 
30,  for  the  relief  of  insolvent  debtors,  to 
appoint  new  assignees,  where  those  first 
appointed  refuse  to  act ;  and  to  compel 
the  first  assignees  to  convey  their  interest 
to  the  new.     But  the  mere  appointment 
of  new  assignees  by  the  Court  does  not 
vest  the  insolvent's  lands  in  them,  so  that 
they  may  support  an  ejectment.    Cooper 
V.  Ueniter&on,  VI.  189 


3.  The  trustees  of  an  insolvent  debtor  may 
institute  an  ejectment,  without  stating 
their  character  upon  the  record.  ib. 

9.  The  assignment  of  an  insolvent  debtor 
passes  all  his  property,  whether  mention- 
ed in  the  schedule  annexed  to  his  peti- 
tion, or  not.  ib. 

10.  A  discharge  under  the  insolvent  law  of 
13th  March  1812,  does  not  disturb  the 
lien  of  a  judgment.  Clark  v.  Israel,  vi.391 

11.  The  lands  of  the  insolvent,  remain  after 
his  assignment  and  discharge,  subject  as 
before  to  proceedings  by  mortgagees  and 
judgment  creditors.    If  the  defendant  is 
in  possession,  with  the  permission  of  his 
assignees,  it  is  not  necessary  to  serve  a 
scire  facias  post  annum  et  diem  upon  his 
assignees.  ib. 

INSPECTION  OF  BEEF  AND  PORK. 

Salted  beef  or  pork  in  barrels,  exposed  to 
sale,  but  not  intended  for  exportation  or 
for  ship  stores,  is  not  subject  to  inspec- 
tion. Garrigues  v.  Reynolds,  vi.  330 

INSPECTORS  OF  THE  PRISON. 
See  Quo  WARRANTO,  1. 

INSTRUCTIONS. 

A  deviation  from  instructions  excused  in 
consequence  of  an  event  not  contem- 
plated at  the  time  they  were  given. 
Dusar  v.  Ptrit,  iv.  361 

INSURANCE. 

See  SETT  OFF,  3. 
EVIDENCE,  9. 

1.  In  an  action  on  a  policy  of  insurance, 
wherein  the  plaintiff  declares  for  a  total 
loss,  and  proves  a  capture  and  condem- 
nation of  the  property  which  he  has  never 
abandoned  ;  the  jury  may  estimate  the 
value  of  the  spes  recuperandi,  deduct  it 
from  the  whole   sum  insured,  and  find 
the  remainder  as  a  partial  loss.  Watson  v. 
The  Insurance  Company  of  North  America, 

147 

2.  If  a  policy  underwritten  in  Philadelphia 
contains  a   warranty  of  American  pro- 
perty, "to  be  proved  if  required  in  this 
"  city  and  not  elsewhere,"  the  assured  is 
entitled  to  vindicate  the  truth  of  his  war- 
ranty not  only  against  a  foreign  condem- 
nation as  enemies'  property,  but  against 
a  condemnation  for  any  act  or  omission  of 
his  agents  during  the  voyage,  by  which 
the  neutrality  is  alleged  to  have  been 
forfeited.  Calhoun  v.  The  Insurance  Com- 
pany of  Pennsylvania,  i.293 


576 


GENERAL  INDEX. 


3.  An  agreement  by  a  lender  on  respondentia, 
"  to   be   liable  to  average  in  the  same 
"  manner  a8  underwriters  on  a  policy  of 
"  insurance  according  to  the  usages  and 
"  practices  of  the  city  of  Philadelphia" 
does  not  entitle  the  borrower  to  calculate 
an  average  loss  upon  the  whole  amount 
of  the  money  loaned  and  the  marine  in- 
terest, but  merely  on  the  cost  and  charges 
of  the  goods  on  board,  and  the  premium 
of  insurance.  Gibson  v.  The  Philadelphia 
Insurance  Company,  i.  405 

4.  Upon  an  insurance  on  goods,  the  under- 
writers are  not  liable  for  freight  paid  by 
the  owner  of  the  goods  during  the  voyage. 

i.  405 

5.  The  assignee  of  a  policy  of  insurance, 
takes  it  subject  to  all  defalcations  to 
which  it   was  liable  before  the   assign- 
ment ;  and  therefore  in  a  suit  by  the  as- 
signee  the  insurers   may  set  off  a  debt 
due  by  the  assured  at  the  time  of  the  as- 
signment, though  it  be  an  open  policy, 
and  the  claim  for  a  partial  loss  Rouasetv. 
The  Insurance  Company  of  North  America, 

i.429 

6.  Upon  an  insurance  "  at  and  from"  the 
warranty  of  seaworthiness  must  be  re- 
ferred to  the  commencement  of  the  risk; 
and  if  between  that  time  and  the  sailing 
of  the  vessel,  she  becomes  unfit  for  sea 
without  the  fault  of  the  assured,  and  is 
afterwards  lost,  the  assured  may  reco- 
ver. Garrigues  v.  Coxe,  i.  592 

7.  A  policy  on  vessel  contained  a  clause 
that  if  "  after  a  regular  survey  she  should 
"  be  condemned  for  being  unsound  or 
"  rotten,  the  underwriters  should  not  be 
"  bound  to  pay  their  subscriptions."  The 
survey  and  condemnation,  to  come  within 
the  clause,  must  shew  unsoundness  from 
decay,  and  not  from  accident,  as  the  eat- 
ing  of  rats.  i.  592 

8.  A  leak  occasioned  by  rats  without  the 
neglect  of  the  captain,  is  a  peril  within 
the  policy.  i.  592 

9.  If  an  insurance  broker  pays  the  premium 
to  the  underwriter  after  notice  from  the 
assured  before  the  premium   was  due, 
that  the  risk  never  commenced,  he  can- 
not recover  it  from  the  assured  and  turn 
him  round  to  a  suit  against  the  under- 
writer for  a  return.    Shoemaker  v.  Smith, 

ii.  239 

10.  If  the  general  agent  of  neutral  cargo 
covers  belligerent  property  in  the  same 
vessel,  though  without  the  consent  or 
knowledge  of  his  principal,  the  property 
of  his  principal  is  liable  to  condemnation, 
notwithstanding  it  is  plainly  distinguish- 
ed from  the  covered  property  by  bills  of 


lading  and  invoices  on  board ;  and  the 
underwriters  on  that  property,  if  war- 
ranted neutral,  are  discharged,  either 
upon  the  ground  that  the  warranty  has 
not  been  performed,  or  that  the  risk  has 
been  increased  by  the  agent  of  thenssnr- 
ed.  Phcenix  Insurance  Company  v.  Pratt, 

ii.  308 

11.  A  vessel  stated  in  the  body  of  the  policy 
to  be  the  "  good  British  brig  called  the 
"  John,"  was  insured  at  the   usual  sea 
risk  premium  from  Havanna  to  Baltimore, 
with  a  written  memorandum  at  the  foot 
of  the   policy,    that  the  insurant*  was 
against  perils  of  the  sea  only,  and  was  to 
end  on  capture.     Heldt  that  the  words 
"  British  brig,"  even  if  a  warranty,  did 
not  imply  that  she  was  a  British  regis- 
tered vessel,  but  merely  that  she  was 
owned  by  a  British  subject ;  and  it  being 
proved  that  the  owner  was  a  Scotchman 
bv  birth,  and  that  he  navigated  the  vessel 
under  a  clearance  and  license  from  the 
British  custom  house  at  New  Providence, 
this  was  sufficient  prima  facie  to  shew 
that  he  continued  to  be  a  British  subject, 
without  shewing  his  domicil  or  place  of 
habitual  residence.  Mackie  v.  Pleasants, 

ii.  363 

12.  To  make  a  survey  and  condemnation  for 
unsoundness,  &c.  a  bar  within  the  usual 
memorandum  in  policies  on  vessel,   it 
must  appear  that  the  vessel  was  con- 
demned for  unsoundness  or  rottenness 
only.     If  the  survey  states  injuries  by 
storm  as  well  as  by  decay,  and  concludes 
that  the  surveyors  are  therefore  of'opinion 
that  the  vessel  is  unworthy  of  repair  and 
unfit  for  sea,  and  the  decree  of  the  ad- 
miralty is  founded  upon  the  report  gene- 
rally, such  a  survey  and  condemnation 
are  not  a  bar.    Jlrmroyd  v-  The  Union  In- 
surance Company,  ii.  394 

13.  Any  trick,  cheat,  or  fraud,  and  any  crime 
or  wilful  breach  of  law,  committed  by 
the  captain  to  the  prejudice  of  his  own- 
ers, is  barratry  ;  as  the  rescue  of  a  neu- 
tral vessel  by  her  own  crew,  from  the 
hands  of  the  captors  who  are  taking  her 
in  for  adjudication.  Wilcocks  v.  The  Union 
Insurance  Company,  ii.  574 

14.  If  the  policy  contains   a  warranty  of 
neutral  property,  and  at  the  same  time 
the  usual  agreement  by  the  underwriter 
to  answer  for  the  barratry  of  the  master 
and  mariners,  the  warranty  implies  that 
the  neutral  character  shall  not  be  forfeit- 
ed by  any  acts  of  the  insured  or  their 
agents,  except  only,    by  such  as  may 
amount  to  barratry.  "•  574 

15.  The  crew  of  a  neutral  vessel,  captured 
arid  sent  in  for    adjudication,   are  not 


GENERAL  INDEX. 


577 


obliged  to  navigate  her.  It  is  the  duty  of 
the  captors  to  put  a  sufficient  force  of 
their  own  on  board  her,  and  if  they  ne- 
glect to  do  it,  they  do  not  take  sufficient 
possession,  and  the  neutrals  may  consider 
her  as  abandoned  to  them.  But  if  an  in- 
sufficient force  is  put  on  board,  in  conse- 
quence of  a  promise  by  the  neutral  crew 
to  navigate  her  to  the  destined  port,  they 
are  bound  by  their  promise,  and  must  be 
considered  for  the  purpose  agreed  on, 
as  the  hands  of  the  captors.  If  in  violation 
of  their  promise,  they  take  the  vessel  into 
their  own  hands,  it  is  an  unlawful  rescue, 
which  is  an  act  of  barratry.  ii.  574 

16.  Seaman's  wages  and  provisions  incurred 
during  an  embargo,  cannot  be  recovered 
as  a  partial  loss  from  the  underwriters 
on  freight.     They  are  general  average 
The  Insurance  Company  of  North  America 
v.  Jones  and  Clark,  ii.  547 

17.  An  agent  neglected  to  effect  insurance 
according    to   a  letter   of   instructions 
which  stated  that  the  owner  valued  the 
vessel  at  4000  dollars,  three  fourths  of 
which  sum  he  wished  to    be    insured. 
Held,  that  he  was  answerable  as  in  case 
of  a  valued  policy,  although  the  letter 
contained  no  precise  order  to  have  the 
policy  valued.  Miner  v.  Tagert,    iii.  204 

18.  Where  a  policy  has  been  effected  as  a 
mere  cover  for  a  wager,  there  can  be  no 
recovery.  iii.  205 

19.  An  abandonment  after  acquittal,  and 
after  an  order  of  restitution  has  been 
given  by  the  court  of  last  resort  to  the 
agent  of  the  assured,  is  too  late,  notwith- 
standing it  be  made  before  actual  resti- 
tution by  the  captors.  Mams  v.  The  Dela- 
ware Insurance  Company,  iii.  287 

20.  It  is  the  state  of  the  fact,  and  not  the 
state  of  the  party's  information  at  the  time 
of  an  abandonment,  that  is  to  test  its  va- 
lidity, ibid. 

21.  The  owner  of  goods  chargeable  with 
general  average,  is  personally  liable  for 
the  amount  of  his  contribution,  notwith- 
standing he  has  abandoned  to  the  under- 
writers. Delaware  Ins.  Co.  v.  Delaume, 

iii.  295 

22.  A  paper  which  is  not  evidence  per  $e  in 
a  suit  between  the  underwriter  and  the 
assured,  does  not  become  so  for  any  pur- 
pose, in  consequence  of  having  been  ex- 
hibited by  the  latter  to  the  former,  as  one 
of  the  preliminary  proofs  of  loss.    Thurs- 
ton  v.  Murray,  iii.  326 

23.  Ship  and  goods  belonging  to  the  same 
o%vners,  were  insured  from  Philadelphia 
to  Barbadocs  ;  but  the  vessel  by  stress  of 
•weather  was  compelled  to  put  into  An- 

Vor..  VI. 


tigua,  where  she  was  condemned  and 
sold,  and  the  voyage  broken  up.  The 
goods  were  likewise  sold,  and  the  net 
proceeds  of  both  were  paid  to  the  super- 
cargo. The  assured  abandoned  ship  and 
goods,  and  recovered  a  verdict  for  a  total 
loss  in  each  case  ;  but  in  adjusting  the 
loss,  they  claimed  to  deduct  out  of  the 
net  proceeds  of  the  goods  which  were  to 
be  credited  to  the  underwriter,  a/>ro  rata 
freight  to  Antigua  Held,  that  no  freight 
pro  rata  was  due.  Armroydv.  Union  Insu- 
rance Company,  iii.  437 

24.  If  a.  pro  rata  freight  had  been  earned  in. 
the   preceding  case,  quxre   whether  it 
would  have  belonged  to  the  underwriter 
on  ship  by  the  abandonment,  or  to  the 
owner  of  the  ship,  who  had  stood  his 
own  insurer  as  to  freight  ?  ibid- 

25.  A  vessel  insured  at  and  from  Philadel- 
phia to  Amsterdam,  with  liberty  in  case 
she  should  be  turned  off  from  Amster- 
dam, to  proceed  to  some  neighbouring 
port  of  discharge,  was  boarded  on  her 
passage  by  a  British  ship  of  war,  and  her 
papers  indorsed  with  a  direction  not  to 
proceed  to  any  port  at  war  with  Great 
Britain,  or  which  was  shut  against  Bri- 
tish ships,  but  to  proceed  to  any  port  of 
Great  Britain  or  Ireland  for  further  di- 
rections.    She  then  put  into  Falmouth, 
where  in  consequence  of  head  winds, 
and  with  a  view  to  obtain  convoy,  (the 
captain  having  there  heard  of  the  Milan 
decree)  she  remained  nearly  four  months, 
and  then  sailed  under  convoy  for  the 
Do-urns,  with  intent  from  that  place  to 
proceed  to  London  or  Amsterdam  accord- 
ing to  advice.  Shortly  before  she  reached 
the  Downs,  a  gale  came  on,  which  forced 
her  into  the  Dovms  where  she  was  totally 
lost.  Held  that  the  indorsement  and  warn- 
ing justified  the  deviation  to  Falmouth  ,• 
that  the  stay  at  Falmouth  was  justified 
by  the  weather,  and  by  the  necessity  of 
obtaining  convoy  ;  and  that  even  if  the 
Downs  were  out  of  the   course  of  the 
voyage  to  Amsterdam,  yet  the  gale  justi- 
fied the  captain's  going  in,  and  his  de- 
sign before    he    left  Falmouth  to  put  in. 
there  for  advice,  was  but  a  mere  intention 
to  deviate,  which  did  not  aH'ect  the  poli- 
cy. Snoicden  v.  Phoenix  Insurance  Company, 

iii.  457 

26.  It  is  not  a  breach  of  a  warranty  of  neu- 
trality, for  the   vessel  insured  to  take 
convoy  of  a  Jiritish  ship  of  war,  if  during 
the  voyage  insured  she  has  become  ex- 
posed to  the  operation  of  the  French  de- 
crees, in   consequence  of  having   been 
visited  at  sea  by  a  Jiritish  cruiser,  iii.  457 

27,  If  a  vessel  arrives  at  her  port  of  desti- 

4D 


578 


GENERAL  INDEX. 


nation,  where  the  policy  ends,  it  is  of  no 
importance  that  she  cannot  be  repaired 
there  at  all,  if  the  injury  previously  sus- 
tained does  not  amount  to  fifty  per  cent, 
of  her  value.  Ralston  v.  Union  Insurance 
Company,  iv.  386 

28.  A  ship  is  insured  from  Jl  to  B,  where 
she  arrives  and  delivers  her  cargo,  hav- 
ing sustained  a  severe  injury  on  the  voy- 
age by  striking  on  a  shoal.  The  damage 
is  such,  that  for  want  of  the  requisite 
docks   she  is  irreparable  at  B,  and  is 
wholly  unseaworthy  to  go  elsewhere. 
She  is  surveyed,  an  estimate  of  the  re- 
quisite repairs  made,  and  she  is  then 
condemned  and  sold.     The  captain  pur- 
chases her  at  a  perfectly  fair  sale,  for 
less  than  the  estimate  of  repairs,  and  for 
less  than  one  sixth  of  her  value  in  the 
policy  ;  and  he  then  sails  in  her  at  a  great 
risk  to  C,  where  he  puts  her  in  a  dry 
dock,  and  has  her  repaired  at  less  than 
fifty  per  cent,  of  her  value.    After  the  re- 
pairs made,  but  before  the  owner  knew 
of  them,  or  of  her  arriving  at  C,  he  aban- 
doned.   Held  that  the  damage  did  not 
amount  to  fifty  per  cent,  of  her  value, 
and  therefore  the  abandonment  was  not 
good  :  but  as  a  partial  loss,  the  insurers 
are  bound  to  pay  not  only  the  cost  of  re- 
pairs, but  the  expenses  of  taking  her  to 
C,  to  be  repaired.  ibid. 

29.  Although  the  assured  does  not  elect  to 
abandon  upon  receiving  intelligence  of 
the  capture  of  his  property,  he  may  ne- 
vertheless abandon  and  recover  as  for  a 
total  loss,  upon  the  event  of  its  condem- 
nation at  any  distance  of  time  from  the 
capture.     Bohlen  v.  Delaware  Insurance 
Company,  iv.  430 

30.  If  the  assured  by  his  own  misconduct 
or  neglect,  prevents  his  property  from 
being  finally  recovered,  the  underwriter 
may  on  that  account  refuse  to  accept  an 
abandonment,  and  in  an  action  for  a  par- 
tial loss,  the  court  will  consider  as  saved, 
what  might  have  been  so,  but  for  the  de- 
fault of  the  assured.  iv.  444 

31.  Where  the  property  insured  is  by  a  pe- 
ril in  the  policy  taken  wholly  out  of  the 
possession  and  control  of  the  assured,  he 
may  abandon  at  any  time  before  it  is  re- 
stored to  him.  The  rule  of  abandoning  in 
a  reasonable  time  after  intelligence  of 
the  loss,  does  not  apply  to  a  case  in 
which  the  whole  property,  by  the  peril 
of  capture,  seizure   and  the  like,   con- 
tinues to  be  out  of  the  possession  and 
control  of  the  assured  up  to  the  time  of 
abandonment.  Broian  v.  Phanix  Insurance 
Company,  iv.  445 

32.  The  owner  of  goods  lost  by  jettison,  is 


not  entitled  to  abandon  to  his  underwri- 
ters and  to  turn  over  to  them  the  claim 
for  contribution  upon  the  other  proprie- 
tors of  cargo,  &c.,  but  must  in  the  first 
instance  resort  to  the  other  proprietors 
himself.  Lapsky  v.  Pleasants,  iv.  502 

33.  Jl  and  B,  American   citizens,  having 
learned  from  the  captain  of  their  ship 
then  in    England,  that    he  intended  to 
bring  home  a  cargo  of  salt,  crates,  &c. 
for  their  account,  effected  insurance  on 
goods,  warranting  them  American  pro- 
perty.    C"and  D,  British  merchants,  and 
the  consignees  of  the  ship  abroad,  load- 
ed the  ship  with  salt  &c.,  which  they 
paid  for  with  their  own  funds,  and  took 
a  bill  of  lading  from  the  captain,  making 
the  same  deliverable  to  their  agent  in  the 
United  States.  They  at  the  same  time  in- 
sured the  cargo  in  their  own  names  in 
England,  and  instructed  their  agent  to 
deliver  it  to  Jl  and  B,  upon  their  paying 
him  a  sum,  exceeding  the  cost  of  the 
cargo,  otherwise  to  dispose  of  it  for  ac- 
count of  C  and  D.    The  ship  foundered 
upon  her  voyage  to  America.    Held,  1. 
That  Jl  and  B  had  no  insurable  interest 
in  the  cargo,  that  they  could  insure  un- 
der the  description  of  cargo  or  goods;  and 
qiuere  if  they  had  any  at  all.    2.  That  if 
they  had,  the  warranty  of  American  pro- 
perty was  falsified  by  the  British  interest 
in  C  and  D.   3.  That  this  was  not  a  case 
of  double  insurance,  because  the  two  in- 
surances were  not  on  the  same  risk,  and 
for  the  same  person.     Warder  v.  Norton, 

iv.  529 

34.  An  insurance  was  effected  on  goods  at 
and  from  Philadelphia  to  Antwerp,  with 
an  agreement  by   the   assured  not    to 

'  abandon  in  case  of  capture  or  detention 
in  less  than  sixty  days  after  notice  there- 
of, and  with  the  usual  clause  against  il- 
licit or  prohibited  trade.  The  ship  sailed 
on  the  13th  of  September  1807,  was  cap- 
tured by  a  British  privateer  on  the  16th 
of  October,  and  carried  into  Plymouth. 
This  event  -was  knoivn  to  the  assured  on  the 
1st  of  December.  On  the  20th  of  October 
the  ship's  papers  were  returned,  and  she 
proceeded  on  her  voyage.  On  the  27th 
she  dropt  anchor  in  Flushing  roads,  when, 
the  captain  having  reported  himself  to 
have  been  in  England,  a  guard  was  put 
on  board  his  vessel,  and  remained  there 
until  he  was  ordered  to  quit  the  roads, 
having  been  refused  permission  to  pro- 
ceed to  Antwerp.  On  the  16th  of  Novem- 
ber or  December,  he  sailed  from  Flushing 
for  Rotterdam,  intending  to  discharge  his 
cargo  there,,  and  on  the  17th  of  Decem- 
ber was  captured  by  a  Bntish  vessel  of 
war,  and  carried  into  the  Downs.  These 


GENERAL  INDEX. 


579 


events  -were  known  to  the  assured  in  the  be- 
ginning of  February.  On  the  24th  of  De- 
cember the  ship's  papers  were  returned, 
with  permission  to  proceed  to  Rotterdam. 
But  various  accidents  detained  her  until 
the  captain,  hearing  of  the  Dutch  decrees, 
determined  to  proceed  to  London,  and 
discharge  his  cargo,  which  he  did  in  the 
latter  end  of  February  or  beginning  of 
March.  On  the  20th  of  May  1808,  the  as- 
sured abandoned  on  the  ground  that  the 
voyage  was  broken  up,  and  the  cargo 
was  discharged  in  England  Held\.  That 
the  prohibition  to  trade  at  Antwerp,  and 
the  arrest  at  Flushing,  being  conse- 
quences of  the  first  capture,  they  were 
not  within  the  clause  against  prohibited 
trade,  and  gave  the  assured  a  right  to 
abandon,  if  exercised  in  due  time.  2.  That 
the  dropping  anchor  in  the  roads  of 
Flushing  was  not  a  deviation,  that  for- 
tress commanding  the  Scheldt,  and  com- 
pelling vessels  to  report  there.  3.  That 
sailing  to  Rotterdam  for  the  purpose  of 
discharging,  was  sailing  on  a  new  voy- 
age, which  the  policy  did  not  protect, 
and  therefore  the  underwriters  were  not 
answerable  for  any  subsequent  disasters. 
4.  That  the  arrest  and  detention  at  Flush- 
ing and  turning  away,  being  known  to 
the  assured  in  February,  the  abandon- 
ment in  May  was  too  late ;  and  there- 
fore the  assured  were  entitled  to  recover 
only  for  the  loss  arising  from  the  first 
capture,  and  carrying  into  England.  Sa- 
vage v.  Pleasants,  v.  403 

35.  A  warranty  that  a  vessel  is  an  American 
bottom,  means  that  she  is  owned  by  a  citi- 
zen of  the  United  States,  and  is  furnished 
with  the  usual  documents  required  by 
our  laws  and  treaties  with  foreign  na- 
tions, so  as  to  protect  her  from  capture 
by  any  of  the  belligerents  ;  but  not  that 
she  is  American  built,  or  is  m.  American 
registered  vessel.  Hence  if  she  is  American 
owned,  and  sails  under  a  sea  letter  mere- 
ly, the  warranty  is  true.  Griffith  v.  Ins. 
Co.  of  North  America,  v.  464 

36.  Ship  and  freight  were  insured  at  and 
from  Philadelphia  to  St.  Barts.     On  her 
voyage  the  vessel  was  so  much  injured 
by  storms,  as  to  be  under  the  necessity 
of  putting  into  Jamaica;  and  upon  being 
surveyed,  it  was  found  that  her  repairs 
would  cost    more    than    she  would    be 
worth  when  repaired.    The  master,  who 
was  consignee  of  the  cargo,  made  inqui- 
ry tor  another  vessel  to  carry  it  on  to  St. 
Barts ;  but   the  only  one  that  could   be 
procured,  was  not  large  enough  to  take 
more  than  half  the  cargo,  and  for  her  an 
exorbitant  freight  was  demanded.  In  con- 
sequence of  this  the  vessel  was  broken 


up,  and  together  with  the  cargo  sold  for 
the  benefit  of  all  concerned.  Upon  re- 
ceiving advice  of  the  facts,  the  owners 
abandoned  to  the  underwriters  on  ship 
and  freight,  and  also  to  the  underwriters 
on  cargo.  Held,  that  as  the  goods  were 
not  voluntarily  accepted  by  the  owners 
at  the  intermediate  port,  no  freight  pro 
rata  was  due,  and  therefore  the  assured 
were  entitled  to  recover  a  total  loss  on 
both  policies.  Callender  v.  The  Ins.  Co.  of 
North  America,  v.  525 

37.  An  agent  who  effects  insurance  for  his 
principal,  and  becomes  answerable  for 
the  premium,  has  a  lien  upon  the  policy, 
so  long  as  he  retains  it;  but  if  he  delivers 
it  up,  his  lien  is  gone  ;  and  although  the 
underwriters  are  entitled  to  deduct  the 
premium,  if  unpaid,  from  the  loss,  yet  if 
paid  by  the  agent,  he  has  no  equity  to 
stand  in  their  place,  and  to  claim  pay- 
ment out  of  the  sum  due  for  the  loss. 
Cranston  v.  The  Phil.  Ins.  Company,  v.  538 

38.  Goods  were  insured  on  board  the  ship 
Logan  "  at  and  from  JVew  York  to  Am- 
"  sterdam,  with  liberty,  in  case  of  being 
"  turned  off  on  account  of  blockade,  to 
"  proceed  to  a  neighbouring  port"  On  the 
voyage  she  was  boardt- d  by  a  British  pri- 
vateer, and  her  papers  endorsed  "  warn- 
"  ed  not  to  enter  or  attempt  to  enter  an 
"  enemy's  port,"  in  consequence  of  which 
she  proceeded  to  Coiues,  where  she  ar- 
rived the  28th  of  December  1807.     She 
there  paid  duties,  and  took  a  license  for 
Amsterdam,   to   continue  in   force  four 
months  from  the  30th  of  December  1807. 
On  the   13th   of  February   1808,    when 
about  to  depart  she  was  detained  by  a 
British  ship  of  war,  and  libelled  in  the 
admiralty.    Restitution  was  obtained  on 
the  23d  of  March,   and  on  the  18th  of 
April  she  sailed  with  a  view  of  prose- 
cuting her  voyage  to  Amsterdam,  but  was 
again  captured   by  a  British  cruiser  on 
the  3d  of  May,  sent  to  Yarmouth  Roads, 
and  a  second  time  libelled.    She  was  re- 
stored on  the  21st  of  June;  but  her  license 
having-  expired,  and  intelligence  having 
been  received  in  England  that  the  French 
and  Dutch  decrees  were  rigidly  enforced 
on  the  continent,  the  captain  proceeded 
to  London,  and  there  discharged  his  car- 
go.   Held,  that  London  was  a  neighbouring 
port,  within  the  policy,  and  that  the  as- 
sured had  no  right  to  abandon.    Ferguson 
v.  The  Phoenix  Insurance  Company,  v.  544 

39  If  the  assured,  in  consequence  of  the 
port  of  destination  being  blockaded,  ac- 
cepts his  goods  from  the  carrier  at  an 
intermediate  port,  paying  full  freight, 
and  from  tlunce  transports  them  by 
lighters  to  thtiir  destined  port,  he  can- 


580 


GENERAL  INDEX. 


not  recover  from  the  underwriter  on 
goods,  either  the  expenses  of  tranship- 
ping and  the  freight  paid  for  the  light- 
ers, or  a  premium  of  insurance  paid  for 
-the  risk  in  the  lighters.  Low  v.  Davy, 

v.  595 

40.  Goods  consisting  of  cocoa,  indigo,  to- 
bacco, &c.  were  insured  in  October  1799, 
on   board  the  ship  Gatlsden,  from  New- 
port^ Rhode  Island,  to  Passage  in  Spain. 
The  goods  were  part  of  a  cargo,  which 
had  been  imported  in  the  same  ship  from 
Luguira  to  Charleston,  and  there  by  per- 
mission of  the  custom  house  officers,  suf- 
fered to  remain  on  board,  being  entered 
for  exportation,  and  bonds  given  for  the 
duties.     Other  goods  were  then  put  on 
board,   with  which  she   sailed  for  Pas- 
sage ;  but  being  forced  in  consequence 
of  an  accident  to  put  into  Newport,  the 
whole  cargo  was  there  taken  out,  and 
after  some  repairs  was  reshipped  in  the 
same  vessel,  which  then  sailed  upon  the 
voyage  insured-    The  order  of  insurance 
only  mentioned  the  kind  of  goods,  but 
nothing  was  said  of  the  importation  from 
Laguira,  nor  of  the  circumstances  at- 
tending the  exportation  from  Charleston, 
although  the  British  order  of  25th  January 
1798,  was  then  well  known  in  the  United 
States, 

Held  1.  That  this  was  a  material  con- 
cealment which  avoided  the  policy. 

2.  That   the  underwriters    were   not 
bound  to  inquire  into  the  origin  or  his- 
tory  of  the  cargo  in   consequence    of 
knowing  that  the  articles  insured  were 
such  as  the  Spanish  colonies  produce ; 
but  it  was  the  duty  of  the  insured  to  in- 
form them. 

3.  That  by  the  true  construction  of  the 
order  of  January  1798,  the  voyage  from 
the  colony  to  the  mother  country  must 
be  indirect,  and  not  merely  the  course  of 
the  voyage :  and 

4  Whether  the  importation  at  Charles- 
ton was  legal  or  not,  it  was  at  least  so 
unusual  and  suspicious,  that  it  was  the 
duty  of  the  insured  to  communicate  it  to 
the  insurer.  Kohne  v.  Insurance  Company 
of  North  America,  vi.  219 

41.  If  a  person,  who  is  under  no  obligation 
to  execute  an  order  of  insurance,  never- 
theless undertakes  it,  and  executes  it  de- 
fectively, he  is  answerable  for  the  loss. 
French  v.  Reede,  vi.  308 

42.  If  the  general  agent  of  ship  and  cargo, 
covers  enemy  property  on  board,  the  war- 
ranty of  neutrality  in  a  policy  on  the  ship, 
is  violated.    Sckwartz  v.  Insurance  Com- 
pany of  North  America,  vi.  378 


INTEREST. 

See  WITNESS,  2.  7,  8. 
LEGACY,  4,  5,  6. 

1.  Where  the  condition  of  a  bond  is  for  the 
payment  of  interest  annually,   and   the 
principal  at  a  distant  day,  the  interest 
may  be  recovered  before  the  principal  is 
due,  in  an  action  of  debt  on  the  bond. 
But  no  interest  can  be  recovered  upon 
such  interest.  Sparks  v  Garrigues,  i.  165 

2.  An  administrator  is  chargeable  with  in- 
terest after  twelve  months  from  the  in- 
testate's death,  where  he  has  been  guilty 
of  neglect  in  not  putting  out  the  money, 
or  where  he  has  used  it  himself;  and  it 
lies  upon   him  to  shew  what  has  been 
done  with  it.  Fox  v.  Wlkocts,          i.  194 

3.  It  is  now  a  settled  rule  that  interest  is 
recoverable  for  money  lent  and  advanc- 
ed ;  and  this  rule  applies  to  loans  made 
when  the  law  was  held  to  be  otherwise. 
Lessee  of  Dihaorth  v.  Sinderling,        i.  488 

4.  A  trustee  is  entitled  to  interest  for  ad- 
vances made  to  supply  the  deficiencies  of 
the  trust  fund,  although  the  interest  and 
advances  nearly  absorb  the  equitable  in- 
terest, i.  488 

5.  The  late  proprietaries  of  Pennsylvania 
were  in  the  habit  of  receiving  the  arrears 
of  their  ground  rents  without  interest; 
and  with  respect  to  those  rents,  the  law- 
has  been  taken  for  granted,  that  interest 
upon  them  is  not  recoverable.    Bantleon 
v.  Smith,  ii.  154 

6.  Quare,  whether  interest  on  rent  is  reco- 
verable in  any  case.  ii.  146 

7.  Interest  cannot  be  recovered  upon  the 
arrears  of  a  ground  rent,  where  the  land- 
lord resorts  to  the  land  for  payment,    ib. 

8.  A  rule  for  trial  or  non  pros,  has  no  effect 
upon   the  plaintiffs  right   to    interest. 
Sulger  v.  Dennis,  ii.  428 

9.  An  agreement  was  made  between  two 
contending  claimants  for  money  in  the 
sheriff's  hands,  that  the   sheriff  should 
deposit  the   amount  in  bank,  until  the 
question  should  be  decided.  The  sheriff 
deposited  it,  but  took  it  out  soon  after. 
Held,  that  the  sheriff  was  bound  to  pay 
interest  to  the  successful  party,  from  the 
time  the  money  was  thus  taken  out  of 
bank.  Commonwealth  v.  Crevor,      iii.  121 

10.  In  cases  where  interest  is  not  of  course, 
but  depends  on  the  con  duct  of  the  partie  s, 
if  the  defendant  before  suit  offers  to  pay 
as  much  as  is  due,  and  the  plaintiff  re- 
fuses to  receive  it,  the  defendant  is  not 
liable  to  pay  interest.  But  if  the  plaintiff 
insists  on  too  much,  and  the  defendant 


GENERAL  INDEX. 


581 


offers  too  little,  there  is  necessity  for 
the  suit,  and  the  defendant  must  pay  in- 
terest. Delaware  Ins.  Co.  v.  Delaunic, 

iii.  295 

11.  Whether  debt  or  scirefaciasbe  brought 
on  a  judgment,  interest  is  recoverable ; 
though  in  scire  facias  it  is  usual  to  give 
judgment  only  that  the  plaintiffshull  have 
his  execution,  and  the  act  of  1700  gives 
interest  without  a  special  direction.  Ber- 
ryhill  \.  Wells,  v.  56 

12.  Rent  carries  interest  from  the  time  it  is 
due,  unless  from  the  conduct  of  the  land- 
lord it  may  be  inferred  that  he  means  not 
to  insist  on  it,  or  unless  he  acts  in  an  op- 
pressive  manner  by   demanding    more 
than  is  due,  where  the  tenant  is  willing 
to  do  justice,  or  there  are  other  equita- 
ble circumstances  making  the  charge  of 
interest  improper.     Obermyer  v.  JVichols, 

vi  159 

13.  Upon  all  balances  due  by  defaulting  re 
venue  officers,  the  United  States  are  enti- 
tled to  interest  from  the  time  of  receiving 
the  money,  although  the  secretary  of  the 
treasury  has  not  issued  his  warrant  or- 
dering the  payment  of  the  balance  into 
the  treasury.     In  practice,  payments  are 
made  without  such  warrant ;  and  the  in- 
tention of  the  act  of  2d  September  1789  in 
requiring  it,    was    that    the    secretary 
might  be  advised  of  the  proceedings  of 
the  treasurer.  It  is  a  matter  between  the 
officers  of  government.    Payments  with- 
out warrant  are  good.     Commonwealth  v. 
Lewis,  vi.  266 

14.  A  judgment  upon  which  it  i«  agreed 
that  no  execution  shall  issue  until  the 
plaintiff  has  perfected  the  title  to   cer- 
tain land  for  which  the  bond  that  sup- 
ported the  judgment  was  given,  carries 
interest.  ShalUr  v.  Brand,  vi.  435 

INTESTATE. 
See  DEBTS. 

1.  A  dies  intestate,  seized  of  real  estate 
which  descended  from  his  father,  and 
leaving  a  mother  and  brother  of  the  ha4f 
blood,  a  paternal  aunt,  and  several  cou- 
sins, the  children  of  deceased  paternal 
great  uncles  and  aunts.     This  is  a  casus 
omitsus  in  the  intestate  laws,  and  the  es- 
tate descends  to  the  heir  at  common  law. 
Cresoe  v.  Laidley,  ii.  279 

2.  The  heir  at  common  law  takes  in  all 
cases,  except  in  those  which  are  specifi- 
cally enumerated  in  the  acts  of  assembly 
relative  to  intestacies.  ib. 

3.  Jl  being  seized  of  real  and  personal  estate 
which  had  come  to  him  from  his  deceas- 


ed father,  dies  intestate  without  issue, 
leaving  a  mother  and  brothers  and  sisters 
of  the  whole  blood. 

Held,  that  the  estate  is  to  go  to  the  bro- 
thers and  sisters,  as  if  the  mother  were 
dead.  Harris  v.  Hayet,  vi.  422 

INTESTATE  LAW. 
See  ADMINISTRATOR,  6. 
INTESTATE,  1,  2. 
ELECTION. 

ISLANDS. 

In  the  admeasurement  of  islands  in  the 
Susquehanna,  it  seems,  the  practice  of 
surveyors  is  not  to  include  the  land 
which  lies  between  the  bank  and  the 
water's  edge  ;  and  therefore  that  a  valua- 
tion, made  upon  the  basis  of  a  survey 
which  did  not  include  that  land,  would 
not  for  that  cause  be  erroneous.  Elliot 
v.  Elliot,  v.  1 

JETTISON. 
See  INSURANCE,  32. 

JOINTENANCY. 

1.  A  mortgage  executed  by  two  out  of  three 
jointenants  is  a  severance  of  the  jointe- 
nancy.  Lessee  of  Simpson  \.  Jtmmonj,  i.  175 

2.  Where  an  estate  is  given  to  several  per- 
sons jointly,  without  any  expressions  in- 
dicating an  intention  that  it  shall  be  di- 
vided among  them,  it  must  be  construed 
a  joint  tenancy.     But  where  it  appears 
either  by  express  words,  or  from  the  na- 
ture of  the  case,  that  it  was  the  testator's 
intention  that  the  estate  should  be  divid- 
ed, it  then  becomes  a  tenancy  in  common. 
Martin  v.  Smith,  v.  16 

3.  Jl  and  B  take  out  a  warrant  to  survey 
200  acres  of  land,  pay  the  purchase  mo- 
ney in  equal  proportions,  and  obtain  a 
survey.     Before  a  patent  is  granted,  Jl 
dies.  Held  that  B  has  no  right  of  survi- 
vorship, but  that  A's  estate  descends  to 
his  heir.  Caines  v.  Lessee  of  Grant,  \.  119 

4.  Where  two  or  more  take  out  a  warrant, 
pay  the  purchase  money,  and  obtain  a 
survey,  they  hold  as  tenants  in  common, 
unless  the  contrary  is  set   forth  ;    and 
either  of  them  may  require  that  the  pa- 
tent shall  be  made  in  that  way.  ib. 

5.  A  last  will  in  Pennsylvania  does  not  sever 
a  jointenancy,  notwithstanding  the  act  of 
1705,   which    makes  a  will    good    and 
available  in  law  for  the  granting,  convey- 
ing and  assuring1  of  lands,  &c.  Duncan  v. 
Forrer,  vi.  193 


582 


GENERAL  INDEX. 


6.  Equity  will  consider  jointenants  as  te- 
nants in  common,  when  they  purchase 
lands  with  a  view  to  expend  large  sums 
of  money  in  the  improvement  of  them. 

vi.  193 

JOINT  PARTNERS. 
See  ACCOUNT  RENDER,  1. 
PARTNERS. 

JUDGE. 

1.  Qutere  whether  a  single  judge  of  the 
Common  Pleas  can  discharge  a  defen- 
dant from  an  execution  issued  by  that 
court  ?     Hecker  v.  Jarret,  iii.  404 

2.  The  copy  of  a  judge's  notes  of  the  testi- 
mony given  by  a  witness  upon  a  former 
trial  between  the  same  parties,  and  certi- 
fied by  the  judge  to  be  a  true  copy,  is 
not  evidence,  nor  is  the  original  itself. 
It  is  no  part  of  his  official  duty  to  take 
notes,  nor  are  the  notes  in  the  nature  of 
a  deposition.  Miles  v.  O'ffara,       iv.  108 

3.  In  general  where  the  law  directs  a  judge 
to  do  an  official  act,  it  receives  his  certi- 
ficate as  sufficient  evidence  that  the  act 
has  been  done.  iv.  110 

JUDGMENT. 

1.  If  a  verdict  be  found  for  plaintiff,  and  dur- 
ing the  pendency  of  a  motion  in  arrest  of 
judgment  the  plaintiff  dies,  judgment 
may  be  entered  as  of  a  term  after  the 
verdict  when  he  was  alive.     Griffith  v. 
Ogle,  i.  172 

2.  Judgments  obtained  before  a  justice  of 
the  peace,  when  filed  in  the  common 
pleas  or  made  known  to  administrators, 
must  be  paidj&ro  rata  with  judgments  in 

.  courts  of  record.     Scott  v.  Ramsay,  i.  221 

3.  Judgment  may  be  arrested  for  an  objec- 
tion on  the  face  of  the  record,  though  it 
•was  not  assigned  at  the  time  of  filing  the 
motion,  or  of  entering  an  appeal.  Grosser 
v.  Eckart,  i.  575 

4.  A  judgment  after  one  nihil  upon  a  scire 
facias  post  annum  et  diem  may  either  be 
set  aside  for  irregularity,   or  reversed 
on  error  ;   but  the   irregularity  cannot 
be  noticed  collaterally  in  another  suit ; 
and  even  if  the  judgment  be  reversed  or 
set  aside,  a  purchaser  at  sheriff's  sale,  to 
whom  a  deed  has  been  made,  will  hold 
the  land.  Lessee  of  Heister\.  Partner,  ii.40 

5.  Judgment  in  a  criminal  case  cannot  be 
reversed  in  part  and  affirmed  in  part.    If 
bad  in  part,  it  must  be  reversed  altoge- 
ther. Jackson  v.  The  Commonwealth,  ii.  79 

6.  Qutere,  whether  a  sale  of  lands  under  a 


younger  judgment,  affects  the  lien  of  an 
older  one.  Young  v.  Taylor,  ii.  218 

7  An  execution  within  a  year  and  a  day, 
continues  the  lien  of  a  judgment,  without 
resorting  to  a  scire  facias  under  the  act  of 
4th  Jpril  1798.  ibid. 

8.  A  judgment  in  Pennsylvania  is  a  lien  on 
every  kind  of  equitable  interest  in  land, 
vested  in  the  debtor  at  the  time  of  the 
judgment.  Held  therefore  to  bind  the  in- 
terest of  a   Connecticut   settler   in  land 
within  the  seventeen  townships,  who  was 
entitled  by  the  act  of  1799  to  obtain  a 
patent  upon  terms,  although  not  he,  but 
his  assignee,  after  the  judgment  and  the 
sale,  complied  with  the  terms,  and  then 
for  the  first  time  obtained  a  confirmation. 
Carkhuffv.  Anderson,  iii.  4 

9.  A  judgment  not  revived  by  scire  facias 
within  five  years  from  its  date,  ceases  to 
be  a  lien  upon  real  estate,  as  well  against 
subsequentjudgmentcreditors.as  against 
subsequent  purchasers.     Sank  of  North 
•America  v.  Fitzsimons,  iii.  342 

10.  A  judgment  creditor  who  had  bought 
the  defendant's  lands  at  sheriff's  sale, 
and  conveyed  them  to  A,  appeared  to  a 
scire  facias  post  annum  et  diem  by  another 
judgment  creditor  against  the  same  de- 
fendant, gave  notice  that  he  should  insist 
upon   fraud   and  combination  between 
plaintiff  and  defendant,  as  a  defence  to 
to  the  scire  facias,  and  in  other  ways  took 
part  in  the  cause,  but  did  not  attend  at 
the  trial,  nor  give  any  evidence,  and  of 
course  a  verdict  and  judgment  were  en- 
tered for  the  plaintiff".    A  knew  and  ap- 
proved these  acts,  and  had  a  bond  of  in- 
demnity from  the  judgment  creditor  first 
mentioned  against  all  other  claims  to  the 
land.    Held  that  it  was  not  competent  to 
A  and  the  judgment  creditor  or  his  re- 
presentatives   afterwards  to  controvert 
the  judgment  upon  the  ground  of  fraud. 
Heller  v.  The  Lessee  of  Jones,  iv.  61 

11.  The  merits  of  a  judgment  rendered  by 
a  court  of  competent  jurisdiction,  while 
the  same  remains  in  full  force  and  unre- 
versed,   can    never  be  re-examined  or 
overhaled  in  another  suit.    Bond  v.  Gar- 
diner, iv.  269 

12.  Verdict  for  the  plaintiff  in  the  court  be- 
low. Motion  for  a  new  trial,  on  which  the 
judges  were  equally  divided.  Afterwards 
motion  for  judgment  for  the  plaintiff,  two 
judges  being  present.  One  ordered  judg- 
ment to  be  entered,  the  other  objected 
to  the  entry,  whereupon  the  clerk  enter- 
ed judgment :  Held  that  this  was  a  good 
judgment,  this  Court  presuming  that  the 
dissenting  judge  intended  merely  to  en- 


GENERAL  INDEX. 


583 


ter  his  dissent  on  the  record,  and  not  to 
arrest  the  regular  course  of  law,  by  pro- 
hibiting the  prothonotary  from  making1  a 
proper  entry  Cahill  v.  Benn,  vi.  99 

13.  A  judgment  is  not  a  lien  upon  lands 
subsequently  purchased  by  the  defend- 
ant, and  aliened  before  execution  issued 
Colhonn  v.  Snider,  vi.  135 

14.  If  the  writ  is  in  trespass,  and  the  decla- 
ration is  part  in  trespass  and  part  in  case, 
the  defendant  cannot  move  in  arrest  of 
judgment,  if  the  jury  have  found  in  his 
favour  upon  the  count  in  case.    Wenberg 
v.  Homer,  vi.  307 

15.  A  judgment,  upon  which  it  is  agreed 
that  no  execution  shall  issue  until  the 
plaintiff  has  perfected  the  citle  to  certain 
land  for  which  the  bond  that  supported 
the  judgment  was  given,  carries  interest. 
Shatter  v.  Brand,  vi.  435 

JUDICIARY. 

The  Supreme  Court  has  a  right  to  pro- 
nounce an  act  of  the  legislature  to  be 
unconstitutional.  Emerick  \.  Harris,  i.  416 

JURISDICTION. 

See  QUARTER  SESSIONS,  1,  2,  3,  4. 

1.  A  state  court  has  no  jurisdiction  of  a  suit 
against  a  consul;  and  whenever  this  de- 
fect of  jurisdiction    is   suggested,   the 
court  will  quash  the  proceedings  ;  it  is 
not  necessary  that  it  should  be  by  plea 
before  general  imparlance.  Mannhardt  v. 
Soderstrom,  i.  133 

2.  The  jurisdiction  of  a  foreign  court  may 
be  examined,  not  only  as  to  the  authority 
under  which  it  is  erected,  but  as  to  the 
subject  over  which  it  is  exercised  ;  but 
if  the  court  is  duly  constituted,  and  has 
jurisdiction  over  the  subject,  its  decrees 
in  rem  cannot  be  revised  by  the  court  of 
another  nation.  Cheriot  v.  Foussat,  iii.  220 

3.  The  decree  of  a  foreign  prize  tribunal  of 
general    jurisdiction,    condemning   pro- 
perty for  having  been  concerned  in  the 
violation  of  law,  is  conclusive  upon  the 
point  that  the  seizure  of  the  property 
was  mude  in  conformity  with  the  law,  it 
being  a  matter  within  their  jurisdiction 
to  decide.  ibid. 

4.  It  is  not  necessary  in  order  to  give  juris- 
diction to   a  Prize   Court,  that  the  pro- 
perty captured  should  have  been  brought 
within  the  dominions  of  the  captor.  Seiz- 
ure and  safe  possession  are  all  that  are  ne- 
cessary to  give  jurisdiction,  and  whether 
the  possession  be  within  the  dominions 
of  the  captor  or  a  neutral,  is  immaterial. 


The  possession  of  the  particular  captor 
is  the 'possession  of  his  sovereign  every 
where.  And  although  the  property  has 
been  sold  as  perishable  goods  by  the 
prize  agent,  and  taken  into  the  neutral 
country  of  the  owner  before  condemna- 
tion, still  the  condemnation  is  valid,  and 
confirms  the  original  taking.  hi.  220 

5.  A  court  of  common  law  has  no  jurisdic- 
tion of  a  cause  whose  object  it  is  to  re- 
coyer  property  taken  and  condemned  as 
prize,  for  having  contravened  a  law  of 
France,  interdicting  trade  with   her  re- 
volted subjects  in  St.  Domingo.  ibid. 

6.  The  Supreme  Court  cannot  discharge  an 
insolvent  debtor,  who  is  in  confinement 
under  process  from  the  District  Court 
for  the  city  and  county.    Ex  parts  Ogle, 

v.  518 

7.  In  an  action  of  replevin,  if  an  issue  be 
joined  upon  rent  in  arrear,  and  there  is 
any  thing  to  shew  the  amount  of  rent 
claimed,  this,  and  not  the  damages  laid 
by  the  plaintiff  in  his  declaration,  will 

•  settle  the  jurisdiction  of  the  Court.  But 
where  the  jurisdiction  depends  on  the 
amount  in  controversy,  there  is  nothing 
to  decide  the  question,  in  actions  sound- 
ing merely  in  tort,  but  the  damages  laid 
in  the  declaration.  Ancora  v.  Burns,  v.  5£2 

8.  Unless  it  appears  by  the  record  of  the 
Quarter  Sessions  that  that  Court  had  not 
jurisdiction,  the  Supreme  Court  will  pre- 
sume  that  it  had.   Baltimore  Turnpike 
case,  v.  48i 

JUROR. 

See  VERDICT. 

1.  Jurors  not  drawn  by  lot  for  the  present- 
court,  but  drawn  upon  a  former  occasion 
and  continued  over,  are  not  entitled  to 
pay  from  the  county,  but  from  the  losing 
party.  Shererv.  Hodgson,  i.  535 

2.  The  testimony  of  jurors  is  not  admissible 
to  impeach  their  verdict  upon  the  ground 
of  misconduct.    Lessee  of  Cluggage    v. 
Swan,  iv.  150 

3.  If  after  a  jury  are  sworn,  and  before  the 
verdict,  one  of  the  parties  learns  that  & 
juror   before   he   was  empannelled,   de- 
clared that  he   had  made  up  his  mind 
against  him,  he  must  make  it  known  at 
once,  if  he  intends  to  rely  on  it.  He  must 
not  take  the  chance  of  a  verdict  in  his 
favour,  and  upon  its  being  the  other  way, 
move  fo>- anew  trial  upon  the  declaration 
of  the  juror.  M:Cork'le  v.  Binnt,       v.  340 

4.  The  juror  implicated,  may  be  examined 
to  shew  that  he  did  not  make  the  decla- 
rations imputed  to  him  ;  but  neither  he, 
nor  any  of  the  jurors  can  be  asked,  whe- 


584 


GENERAL  INDEX. 


ther  he  was  not  in  favour  of  the  lowest 
sum  that  had  been  named  for  damages 
by  any  of  the  panel.  v.  340 

5.  A  precept  to  the  sheriff,  commanding 
him  to  cause  to  come  &c.  "  24  good  and 

1  lawful  men  of  the  body  of  the  county  of 

'  C.  aforesaid,  then  and  there  to  inquire, 

'  present,  do  and  perform  such  things  as 

•OH  behalf  of  the  Commonwealth  shall 

'  be  enjoined  them,  and  also  a  competent 

'  number  of  sober  and  judicious  persons, 

'and  none  other,  as  jurors  for  the  trial 

'  of  all  issues  &c ,"  contains  no  command 

to  convene  the  petit  jurors  from  the  body 

of  the  county  of  C.    And  therefore  if  it 

does  not   appear  by  the  return  of  the 

panel,  that  the  petit  jurors  in  fact  came 

from  the  body  of  the  county,  the  error  is 

fatal.    White  v.  The  Commonwealth, 

vi.  179 

6.  If  process  goes  to  the  sheriff  and  county 
commissioners  to  draw  a  jury  for  a  Court 
of  Oyer  and  Terminer,  and  it  be  not  re- 
turned so  that  it  shall  appear  in  some 
part  of  the  jury  process  that  the  jurors 
have  been  legally  drawn,  it  is  error.  Eaton 
v.  The  Commonwealth,  vi.  447 

JURY. 

1.  It  is  not  necessary  to  entitle  a  party  to  a 
special  jury,  that  the  attorney  should 
certify  that  it  is  not  intended  for  delay. 
Lessee  of  JVeffv-.  Neff,  i.  350 

2.  There  is  no  time  limited  within  which  a 
party  must  apply  for  a  special  jury.   ibid. 

3.  The  plaintiff,  a  master  of  a  vessel,  prov- 
ed that  while  abroad  he  had  expended 
money  upon  account  of  his  owner  the  de- 
fendant, for  seamen's  wages,  provisions, 
port  duties,  &c.  without  shewing  haw  much; 
and  the  omission  to  produce  vouchers, 
was  in  some  measure  accounted  for  by 
the  capture  of  his  vessel,  and  the  loss  of 
his  papers.    Held,  that  under  these  cir- 
cumstances the  jury  might  make  what 
they  thouglit  a  reasonable  allowance  for 
disbursements  without  further  evidence. 
Sutger  v.  Dennis,  ii.  428 

4.  A  jury  may  take  out  with  them  any  writ- 
ings that  have  been  given  in  evidence, 
without  distinction  as  to  sealed  or  un- 
sealed, except  the  depositions  of  witness- 
es. Alexander  v.  Jameson,  v.  238 

JUSTICE  OF  THE  PEACE. 

See  APPEAL,  2.  5.  7. 

NEGRO  AND  MULATTO,  2. 

1.  A  justice  of  the  peace  cannot  enter  judg- 
ment upon  a  wan-ant  of  attorney.  He 
must  proceed  by  warrant  in  the  nature 


of  »  summons  or  capias.  Alberty  v.  Davi- 
«on,  i.  105 

2.  The  record  of  a  judgment  by  a  justice  of 
the  peace  still  remains  before   him,  and 
may  be  the  foundation  of  a  scire  facias, 
after  a  transcript  has  been  filed  in  the 
Common  Pleas.  Drum  v.  Snyder,     i.  381 

3.  The  act  of  19th  April  1794,  called  the 
20/.  law,  giving  jurisdiction  to  justices 
of  the  peace  in  certain  cases  not  exceed- 
ing 201.  is  not  unconstitutional.   Emerick 
v.  Harris,  \.  416 

4.  Justices  of  the  peace  have  nojurisdiction 
in  trespass,   when  the  damage  exceeds 
twenty  dollars ;  and  although  the  sum- 
mons be  in  debt  or  demand,  yet  if  the 
evidence  sent  up  shews  it  was  in  tres- 
pass, judgment  for  a  greater  sum  will  be 
reversed.  Dunn  v.  French,  ii.  173 

5.  The  defendant  in  a  suit  before  a  justice 
of  the  peace,  is  entitled  to  enter  special 
bail,  to  obtain  a  stay  of  execution,  after 
the  twenty  days  allowed  for  an  appeal 
have  expired,  provided  an  execution  has 
not  already  issued.  Mann  v.  Alberti, 

ii.  195 

6.  In  a  proceeding  by  a  justice  of  the  peace, 
&c.  against  a  turnpike  company,  for  per- 
mitting their  road  to  be  out  of  repair  five 
days,  it  is  necessary  that  it  should  dis- 
tinctly appear  in  the  inquisition  that  the 
road  has  been  out  of  repair  five  days, 
and  that  the  part  of  the  road  complained 
of  be  stated  to  be  in  the  county  in  which 
the  justice  has  jurisdiction.  Commonwealth 
V.  The  Willow  Grove  Turnpike  Company, 

ii.257 

7.  A  magistrate  cannot  devest  himself  of 
his  judicial   capacity  to  administer  an 
oath,  while  his  commission  is  in  force  ; 
and  therefore   whenever  he  administers 
an  oath  it  shall  be  taken  to  have  been 
done  judicially,  although  it  does  not  so 
appear  upon  the  face  of  the  affidavit. 
Commissioners  of  Berks  v.  Ross,      iii.  539 

8.  No  verdict  can  be  recovered  against  a 
justice  of  the  peace  for  the  penalty  of 
50/.imposed  by  the  act  of  14th  of  February 
1729,  upon  his    joining  in    marriage   a 
minor  without  the  consent  of  parent  or 
guardian,  unless  previous  notice  is  given 
to  the  justice,  according  to  the  act  of 
21st  March  1772.    But  although  it  is  ne- 
cessary  that  this  notice  should  be  given, 
and  should  precisely  indicate  the  cause 
of  action,  it  is  not  necessary  that  it  should 
state  the  kind  of  writ  that  it  is  intended 
to  sue  out.  Mitchell  v.  Cowgill,          iv.  20 

9.  Performing  the  marriage  ceremony  by 
a  justice,  is  an  act  in  the  execution  of 
his  office,  because  he  has  authority  by 


GENERAL  INDEX. 


585 


the  act  of  1700  to  sign  certificate*  of 
marriage.  iv.  24 

10.  The  judgment  of  the  Court  of  Common 
Pleas  upon  the  proceedings  of  two  jus- 
tices under  the  landlord  and  tenant  law, 
brought  before  that  court  by  certiorari,  is 
not  final,  but  may  be  taken  to  the  Su- 
preme Court  by  writ  of  error.    Clark  v. 
Teat,  iv.  185 

11.  A  justice  of  peace  has  jurisdiction  of  a 
suit  by  an  officer  to  recover  his  fees, 
provided  the  amount  does  not  exceed 
one  hundred  dollars.    Lyon  v.  M'Manus, 

iv.  167 

12.  A  justice  may  give  judgment  before  the 
return  day  of  his  process,  if  the  parties 
voluntarily  appear,  and  proceed  to  the 
hearing.   Buckmyer  v.  Dubbs,  v.  29 

13*  A  justice  must  set  forth  the  date  of  his 
judgment  j  but  if  the  day  of  appearance 
is  mentioned,  and  then  the  judgment  is 
set  forth  without  day,  this  Court  will 
presume  that  it  was  rendered  on  the 
appearance  day.  ibid. 

14.  Upon  a  certiorari  to  a  justice  of  the 
peace,  this  Court  may  inquire  into  the 
evidence  given  before  him  ;  but  no  parol 
evidence  can  be  heard  upon  a  writ  of 
error  to  the  Common  Pleas  to  remove  a 
judgment  there  rendered  upon  a  certio- 
rari  to  a  justice.  ibid. 

15.  A  justice  of  the  peace  may  issue  a  scire 
facias,  as  well   to    introduce  new   par- 
lies, as  to  enforce  a  recognizance  of  bail. 
Berryhill  \.lfells,  •    v.  56 

16.  Upon  an  appeal  from  a  justice  of  the 
peace,  a  jury  may  find  a  sum  due  to  a 
greater   amount    than   was  within  the 
jurisdiction  of  the  justice.     It  does  not 
follow  from  such  a  verdict,  that  the  jus- 
tice had  no  jurisdiction.    J\ll Kinky  v. 
M'CaUa,  v.'  600 

17.  The  act  of  1st  March  1799,  which  ex- 
tends the  powers  of  justices  to   suits 
brought  for  the  recovery  of  damages  for 
any  trespass,  wrong,  or  injury,  done  or 
committed  against  the  real  or  personal 
estate  of  the  plaintiff,  where  the  damages 
do  not  exceed  20  dollars,  (afterwards  in- 
creased to  50  dollars,)  only  comprehends 
cases  where  the  damage   arises  by  an 
actual    or    immediate   injury   operating 
upon  the  body  of  the  property.  .VlasteUer 
v.  Trimbly,  vi.  33 

18.  In  a  notice  to  a  justice  of  the  peace, 
that  unless  he  tenders  sufficient  amends 
within  thirty  days,  a  writ  will  be  sued 
out  against  him  &c.  it  is  not  necessary  to 
insert  in  the   notice  the  kind  of  writ, 
whether  capias  or  summons,  nor  the  kind 

VOL.  VI. 


of  action,  whether  trespass  or  case.  Litle 
v.  Toland,  vi.  83 

19.  To  a  justice  of  the  peace  in  Washington 
county,  it  is  a  sufficient  notice  of  the 
abode  of  the  party's  attorney,  to  describe 
him  as  T.  B.  of  Washington,  that  meaning 
in  common  parlance  the  town  of  Washing- 
ton, ibid. 

20.  A  justice  of  the  peace  who  attends  as  a 
witness  for  the  Commonwealth  in  crimi- 
nal cases,  is  entitled  to  his  daily  pay,  ex- 
cept for  one  day  during  each  court,  when 
he  is  bound  to  attend  for  the  purpose  of 
returning  his  recognizances.     Common' 
•wealth  v.  The  Commissioners  of  Philadel- 
phia, vi.  397 


JUSTIFICATION. 

1.  In  trespass  by  the  defendant  in  an  exe- 
cution, against  a  justice  of  the  peace,  a 
constable,  and  the  plaintiffs,  the  consta- 
ble may  justify  under  the  warrant  with- 
out shewing  the  judgment,  if  there  is  a 
several  justification  by  him.  Kerlin  v.  Jfea- 
cock,  jii.  215 

2.  If  two  or  more  defendants  plead  not 
guilty     "  with     leave     to    justify,"    it 
amounts   to   a  several  justification    by 
each.  ibid. 

3.  A  constable  and  his  assistant  may  justify 
under  an  execution  from  a  magistrate, 
though  itfbe  clearly  irregular,  e.g.  a  joint 
execution  against  principal  and  buil  upon 
separate  judgments.  Paul  v.  Vankirk, 

vi.  123 

LACHES. 

See  WARRANT  AND  SURVEY,  11. 

1.  An  affidavit  that  A  was  a  material  wit- 
ness, that  he  had  gone  to  Lisbon  and  was 
expected  to  return  by  the  next  court,  and 
that  the  party  did  not  know  of  his  going 
until  three  or  four  days  before  he  went, 
and  did  not  advert  to  the  circumstance 
of  his  being  a  material  witness,  is  not  a 
sufficient  ground  for  postponing  the  trial. 
Davidson  v.  Brown,  iv.  243 

2.  A  being  the  creditor  of  B  for  a  sum  of 
money,  took  from  him  as  security  a  bill 
of  lading  indorsed  in  blank,  for  goods 
shipped  to  the   West  Indies.     A  took  no 
steps   to   obtain   the   possession   of  the 
goods  on  their  arrival.    B  died.    C,  ano- 
ther creditor,  laid  an  attachment  upon 
the  goods,  and  had  judgment  for  them 
in  the  hands  of  the  garnishee.  Held  that 
A  by  his  negligence  lost  his  right  to  the 
goods  or  the  proceeds,  as  against  C.  Bank 
of  North  America  v.  M'Catt,  iv.  371 

4E 


586 


GENERAL  INDEX. 


LANDLORD  AND  TENANT. 

1.  Notice  to  quit  at  the  end  of  a  certain 
year,  is  not  waived  by  the  landlord's  per- 
mitting the  tenant  to  remain  in  posses- 
sion an  entire  year  after  the  expiration  of 
the  notice,  Boggs  v.  Black,  i.  333 

2.  The  notice  to  quit  required  by  the  land- 
lord and  tenant  law,  must  be  given  three 
months  before  the    end  of   the    term. 
Brown  v.  Vanhorn,  i.  334 

3.  A  tenant  cannot  resist  his  landlord's  re- 
covery in  ejectment,  by  virtue  of  an  ad- 
verse title   acquired  during   his  lease. 
Lessee  of  Galloway  v   Ogle,  ii.  468 

4.  The  judgment  of  the  Court  of  Common 
Pleas  upon  the  proceedings  of  two  jus- 
tices under  the  landlord  and  tenant  law, 
brought  before  that  court  by  certiorari,  is 
not  final,  but  may  be  removed  to  the  Su- 
preme Court  by  writ  of  error.     Clark  v. 
Teat,  iv.  185 

5.  The  22d  section  of  the  act  of  the  20th  of 
March  1810,  which  makes  the  decision 
of  the  Common  Pleas  upon  appeals  from 
justices,  final,  does  not  apply  to  proceed- 
ings under  the  landlord  and  tenant  law.z'6. 

6.  Jl  leased  a  lot  of  ground  to  B  for  three 
years,  and  B  covenanted  to  deliver  up 
possession  at  the  end  of  the  term  ;  it  be- 
ing agreed  that  the  possession  held  by  B 
should  have  no  effect  upon  the  right  of 
either  party,  there  being  a  controversy 
between  them  about  the  title.     The  pos- 
session not  being  delivered  up,  A  brought 
ejectment ;  and  the  parties  then  agreed 
that  the  title  should  be  tried  in  the  suit, 
and  that  if  the  court  should  think  the 
right  of  possession  was  in  Jl,  he  should 
have  all  the  advantages  of  actual  posses- 
sion. Held  that  this  agreement  authoriz- 
ed B,  notwithstanding  the  lease,  to  shew 
that  he  had  a  better  right  to  the  lot  than 
Jl.     Lessee  of  the  Mayor  of  Philadelphia  v. 
Schuylkill  Bridge  Company,  iv.  283 

7.  A  lease  for  nine  months,  or  any  time 
certain  less  than  a  year,  is  a  lease  for  one 
or  more  years  within  the  landlord  and  te- 
nant law  •,  and  if  the  rent  is  "  payment  of 
"taxes  and  daubing  and  chinking  a  cer. 
"tain  house,"  tt  is  a  certain  rent  within 
that  law.     Shaffer  v.  Sutton,  v.  228 

8.  The  goods  of  a  tenant  takenin  execution 
upon  the  premises,  are  liable  to  the  pay- 
ment of  rent  to  the  landlord,  up  to  the 
time  they  are  taken  in  execution,  though  it 
be  in  the  middle  of  a  quarter  ;  but  not  up 
to  the  time  of  sale.    Binns  v.  Hudson, 

v.  505 

9.  If  the  tenant  agrees  to  pay  a  certain  rent, 
clear  of  all  deductions  for  taxes  which 


he  covenants  to  pay,  the  landlord  cannot 
claim  a  preference  for  the  taxes  due  and 
unpaid,  but  only  for  the  rent.  v.  505 

10.  Although  a  lessee  cannot  controvert  the 
title  of  his  lessor,  yet  this  rule  exists 
only  where  the  lease   has   been  taken, 
without  fraud,  force,  or  illegal  behaviour 
on  the  part  of  the  lessor,  and  not  where 
the  lessor  has  threatened  the  lessee  to 
turn  him  off  the  land  by  force  of  arms, 
unless  he  would  take  the  lease.    Lessee 
of  Hamilton  v.  Marsden,  vi.  45 

11.  If  a  tenant  for  life  purchases  an  adverse 
title  without  the  consent  of  the  rever- 
sioner,  his  children  and  all  persons  who 
come  in  under  him  or  them,  are  estop- 
ped from  controverting  the  reversioner's 
right  to  possession,  in  the  same  manner 
as  tenant  for  years  or  his  assignee  would 
be.     Caufman  v.    Congregation  of  Cedar 
Spring,  vi.  59 

12.  Although  the  landlord  and  tenant  law 
says  the  judgment  of  the  justices  shall 
be  final  and  conclusive,  a  writ  of  error 
lies.     Clarke  v.  Patterson,  vi.  128 

13.  A  writ  of  error  is  not  a  supersedeas  to 
proceedings  in  the  Common  Pleas,  be- 
tween landlord  and  tenant.  Grubbv.  Fox, 

vi.  460 

LAND  OFFICE. 

See  MANDAMUS,  6. 

1.  The  act  of  22d  April  1794,  which  pro- 
hibits the  land  office  from  receiving  ap- 
plications for  certain  lands  after  the  date, 
does  not  prevent  an  alteration  of  the 
names  of  former  applicants.    Faulkner  v. 
The  Lessee  of  Eddy,  i.  188 

2.  An  appeal  does  not  lie  from  the  board  of 
property  to  the  Common  Pleas,  although 
an  act  of  assembly  directs  the  officers  of 
that  board  to  do  certain  things  in  case  of 
an  appeal.    The  only  way  of  contesting 
their  decision,  is  by  an  action  between 
the  parties  in   the  ordinary  way.     The 
Commonwealth  v.  Cochran,  i.  324 

3.  It  has  been  the  practice  in  the  land  office 
since  the  revolution,  to  accept  surveys 
made  even  since  the  year  1767  upon  old 
warrants,notwithstanding  they  contained 
more  than  ten  per  cent,  surplus.    Lessee 
of  Steinmetz  v.  Young,  ii.  520 

LANDS. 

Lands  devised  by  a  residuary  clause  are 
subject  to  the  payment  of  legacies,  upon 
a  deficiency  of  the  personal  estate,  if 
the  testator  has  blended  his  real  and  per- 
sonal estate  together  in  the  devise  of  the 
residue.  Hassanclever  v.  Tucker,  ii.  525 


GENERAL  INDEX. 


587 


LARCENY. 


1.  Under  the  act  of  5th  April  1790,  which 
declares  that  larceny  of  bills  obligatory 
shall  be  punished  in  the  same  manner  as 
larceny  of  any  goods  or  chattels,  the  felo- 
nious taking,  &c.  of  one  bill  obligatory, 
is  punishable  as  a  larceny.  The  Common- 
wealth v.  Messingtr,  i.  273 

2.  The  notes  of  an  unincorporated  bank  in 
Pennsylvania,  are  not  the  subject  of  lar- 
ceny. Sjiungler  v.  The  Commonwealth, 

iii.  533 

3.  So  long  as  wild  bees  remain  in  the  tree 
where  they  have  hived,  notwithstanding 
the  tree  is  upon  the  land  of  an  individual, 
and  he  has  confined  them  in  it,  they  are 
not  the  subject  of  a  larceny.    Wallis  v. 
Mease,  iii.  546 

4.  A  person  who  steals  goods  in  another 
state,  and  brings  them  with  him  into  this 
state,  cannot  be  indicted  here  for  the  fe- 
lony.    He  is  to  be  treated  as  a  fugitive 
from  justice.   Simmons  v.  The  Common- 
wealth, v.  617 

LAW  OF  NATIONS. 
See  MUNICIPAL  LAW. 

The  law  of  nations  is  part  of  the  law  of 
Pennsylvania.  Wilcocke  v.  The  Union  In- 
surance Company,  ii.  581 

LAY-DAYS. 

See  FREIGHT. 

LEADING  QUESTION. 
Set  WITNESS,  17. 

LEGACY. 
See  CONSIDERATION^  3. 

1.  The  testator  ordered  his  just  debts  and 
funeral  expenses  to  be  paid  by  his  ex- 
ecutors, and  then  bequeathed  a  legacy 
of  500?.  to  A.  to  be  paid  her  in  one  year 
after  his  decease,  and  in  case  of  her  death 
to  be  divided  among  her  three  sisters. 
He  also  devised  specific  real  estate  to  B. 
and  a  legacy  of  100/.  to  be  paid  at  lawful 
age,  but  in  case  of  his  death  unmarried, 
the  land  and  money  to  sink  into  his  resi- 
duary estate.  The  rest  and  residue  of  his 
estate  real  and  personal  he  devised  and  be- 
queathed to  his  brothers  and  sisters  their 
heirs  and  assigns  as  tenants  in  common, 
provided  that  his  sister  M.  should  keep 
the  whole  in  her  possession  during  her 
widowhood.  Held,  that  the  testator  hav- 
ing blended  his  real  and  personal  estate, 
the  real  was  subject  to  the  burden  of  .-A- 


legacy,  upon  the  deficiency  of  the  per- 
sonal ;  and  that  the  legacy  was  not  to 
wait  for  the  expiration  of  JW.'s  life  estate 
in  the  land,  but  to  be  paid  in  one  year 
after  the  testator's  decease.  Hassandever 
v.  Tucker,  ii.  525 

2.  Assumpsit  will  lie  for   an  ascertained 
money  legacy  ;  and  the  plaintiff  HI  ay  in 
the  same  count  go  for  an  unascertained 
residuary  legacy.  Clark  v.  Herring,  v.  33 

3.  The  testator  by  his  last  will,  bequeathed 
to  his  son  ./.  100/.  cash ;  and  then  direct- 
ed that  "  the  remainder  of  all  the  money 
"  arising  from  the  sale  of  his  plantation 
"  and  the  personal  estate,  after  the  afore- 
"  said  portions  were  paid  (of  which  John's 
"was   one)   should  be   equally  divided 
"  among  his  six  children  or  their  heirs." 
Prior  to  the  date  of  the  will,  the  testator 
paid  his  son  50/.  and  took  his  receipt  for 
501.. portion. — /.  died  before  the  testator. 
Held  that  the  legacy  of  100/.  to  /.  had 
lapsed.  Weishaupt  \.  Brehman,        v.  115 

4.  The  testator  bequeathed  to  his  daughter 
R.  the  interest  of  400/ ,  to  be  paid  her 
annually  during  her  natural  life.  Held,  that 
the  first  payment  was  to  be  made  at  the 
end  of  the  first  year  from  the  testator's 
death.  Eyre  v.  Golding,  v.  472 

5.  There  is  a  difference  between  a  legacy 
of  a  sum  of  money  to  one  for  term  of 
life,  and  a  bequest  of  a  sum  to  be  paid 
annually  for  life.  In  the  former  case,  the 
legacy,  not  being  payable  till  the  end  of 
a  year  from  the  testator's  death,  carries 
no  interest  for  that  year.    But  in  the  lat- 
ter, the  first  payment   of  the    annuity 
must  be  made  at  the  end  of  the  first  year, 
or  the  legatee  will  not  receive  the  an- 
nuity annually  during  his  life.  ibid. 

6.  The  testator  bequeathed  to  the  four  chil- 
dren of  his  nephew  J.  M.  the  sum  of  400/. 
to  each  of  them;  which  sums  he  directed 
to  be  put  out  on  interest  at  the  expira- 
tion of  two  years  after  his  decease,  for 
the  benefit  of  the  said  legatees  respec- 
tively, and  the  principal  and  interest  to  be 
paid  as  they  should  respectively  attain 
twenty-one;  but  if  any  of  them  should  die 
in  his  or  her  minority  without  issue,  the 
share  of  such  child   so  dying  should  be 
equally  divided  among  his  or  her  bro- 
thers and  sisters.     Held  that  no  interest 
was  recoverable  by  the  legatee  during 
minority  ;  but  that  it  must  accumulate, 
and  in  case  of  the  legatee's  death  ander 
age,  form  a  part  of  the  share  to  be  divid- 
ed amon'sr  the  survivors.  Miles  v.  Wister, 

v.477 

7.  The  testator  bequeathed  two  thousand 
pounds  "  to  the  children  and  grand-chil- 


588 


GENERAL  INDEX. 


'  dren  of  bis  brother  /.  j°.  deceased,  ex- 
'cepting  M.F"  (who  was  a  grand-child 
of /.P.)  "  and  her  children,  she  and  they 
1  not  needing  it,  to  be  equally  divided 
'  among  those  of  them  who  may  be  then 
1  living,"  (viz.  at  the  death  of  the  testa- 
tor's widow)  "  saving  that  his  cousin 
"  S.  It  should  have  two  shares  thereof." 
Held,  I.  That  the  great  grand-children  of 
/.  P.  took  equally  with  children  and 
grand-children.  2.  That  all  who  were 
alive  at  the  death  of  the  testator's  wi- 
dow, whether  born  before  or  after  the 
testator's  death,  were  entitled  to  take. 
Pcmberton  v.  Parke,  v.  601 

8.  If  a  testator  blends  his  real  and  personal 
estate  in  a  general  devise  of  the  residue, 
the  legacies  are  a  charge  upon  the  lands. 
Witmun  v.  JVbrton,  vi.  395 

9.  The  testator  devised  to  trustees  the  divi- 
dends and  income  of  8000  dollars  old  six 
per  cent,  stock  of  the  United  States  for  the 
separate  use  of  his  niece,  and  upon  the 
trust  and  confidence  that  they  would  re- 
ceive the  dividends  and  income,  and  ap- 
ply the  same  for  the  support  of  tlte  said 
niece  and  the  maintenance  and  education  of 
her  children.    He  also  gave  to  the  same 
trustees  the  principalofthe  said  8000  dol- 
lars as  the  same  should  be  paid  off  and 
discharged  by  the   government,   to   be 
held  in  trust  and  applied  as  he  had  be- 
fore directed  with  regard  to  the   divi- 
dends and  income  thereof. 

Held,  that  the  trust  did  not  cease  upon 
the  death  of  the  niece  and  the  arrival  of 
her  children  at  lawful  age  ;  but  that  the 
trustees  were  to  pay  to  the  children  the 
entire  dividends  of  the  stock,  including 
the  annual  instalment  of  principal,  until 
the  whole  should  be  redeemed  by  the 
United  States.  Bringhurstv.  Cuthbert, 

vi.  398 

LEGAL  ESTATE. 

A  warrant  and  survey  with  payment  of  the 
purchase  money,  are  to  be  considered  in 
Pennsylvania  in  the  same  light  as  the  le- 
gal estate  in  England,  and  are  not  to  be 
distinguished,  as  to  conveying,  intailing, 
and  barring  intails,  from  estates  strictly 
legal.  Lessee  of  Willis  v.  Bucher,  ii.  455 


LETTERS  TESTAMENTARY. 

As  to  personal  property,  the  probate  of  a 
will  is  conclusive,  while  the  letters  tes- 
tamentary remain  unrevoked.  As  to 
reality,  it  is  but  prima  facie  evidence. 
Coates  v.  Hughes,  iii.  498 


LEVY, 

Ste  PURCHASER,  3. 

A  levy  upon  any  thing  less  than  a  whole 
tract  or  lot  of  land  is  void.  Snydtr  \ 
Castor,  ii.  216  note. 

LIBEL. 

1.  The  act  of  assembly  of  16th  March  1809, 
which  enacts  that  no  person  shall  be  sub- 
ject to  prosecution  by  indictment  for  the 
publication  of  papers  examining  the  pro- 
ceedings of  the  legislature  or  any  branch 
of  the  government,  or  for  investigating 
the  official  conduct  of  officers  or  men  in 
public  capacity,  is  not  unconstitutional. 
Commonwealth  v.  Duane,  i.  601 

2.  Upon  an  indictment  for  writing  and  pub- 
lishing a  libel  on  the  characters  of  A  and 
B,  and  also  upon  the  memory  of  C  de- 
ceased, the  jury  found  the  defendant 
"  guilty  of  writing  and  publishing  a  bill 
"  of  scandal  against  A  and  B,  but  not 
"guilty  as  to  any  C  deceased."     Judg- 
ment reversed,   because  the  defendant 
was  not  found  guilty  of  the  offence  charg- 
ed in  the  indictment.  Sharjf  v.  T/ie  Com- 
monwealth, ii.  514 

3.  To  print  and  publish  of  A,  "  that  he  has 
"  been  deprived  of  a  participation  of  the 
"  chief  ordinance  of  the  church  to  which 
"  he  belongs,  and  that  too  by  reason  of 
"  his  infamous,  groundless  assertions," 
is  a  libel.  JWCorkle  v.  Jiinns,  v.  340 

4.  So  is  any  malicious  printed  slander  which 
tends  to  expose  a  man  to  ridicule,  con- 
tempt, hatred,  or  degradation  of  charac- 
ter, ibid. 

LIEN. 
See  TRUSTEE,  1. 

1.  The  proprietor  of  a  ground  rent  in  fee, 
who  obtains  a  judgment  in  covenant  for 
the  arrears,  and  sells  the  land,  is  entitled 
to  be  paid  the  whole  of  the  rent  in  arrear 
out  of  the  proceeds,  in  preference  to  older 
judgments.  Bantleon  v.  Smith,         ii.  146 

2.  An  execution  within  a  year  and  a  day, 
continues  the  lien  of  a  judgment,  without 
resorting  to  a  scire  facias  under  the  act 
of  ^a.  April  1798.  Young  v.  Taylor,  ii.218 

3.  £)u<ere,  whether  a  sale  of  lands  under  a 
younger  judgment,  affects  the  lien  of  an 
older  one  ?  ii.  231 

4.  A  judgment  in  Pennsylvania  is  a  lien  up- 
on every  kind  of  equitable  interest  in 
land,  vested  in  the  debtor  at  the  time  of 
judgment.  Curkhuff  v.  Anderson,        iii.  4 


GENERAL  INDEX. 


589 


5.  <>>//<«  e,  whether  a  report  of  the  auditors 
of  commissioners'  accounts  is  a  lien  upon 
the  estate  of  the   delinquent   commis- 
sioner, unless  it  is  filed  in  the  office  of 
the  Common  Picas,  by  order  of  the  court, 
and  an  entry  of  the  order  made  upon  the 
docket  or  court  minutes.    Irish  v.    The 
Common-wealth,  iii.  91 

6.  A  judgment  not  revived  by  scirc  facias 
within  five  years  from  its  date,  ceases  to 
be  a  Hen  upon  the  real  estate  of  the  de- 
fendant, as  well  against  subsequent  judg- 

.  ment  creditors,  as  subsequent  purcha- 
sers. The  Bank  ofj\'orth  America  v.  Fitz- 
shnons,  iii.  342 

7.  -/I  received  a  sum  of  money  from  B,  and 
gave  him  a  receipt,  stating  it  to  be  re- 
ceived as  an  advance  on  a  shipment  of 
flour  then  making  on   board  a  certain 
ship,   to  be  consigned  to  the  house  of  B 
in  Manchester.  The  flour  was  bought  by 
At  after  this  receipt,  and  delivered  by  the 
vendor  on  board  a  ship  freighted  by  A. 
A  having  stopt  payment  about  the  same 
time,  agreed  with  the  vendor  of  the  flour, 
who  was  ignorant  of  the  agreement  with 
K,  to  rescind  the  contract  of  sale,    and 
gave  him  back  the  bill  of  parcels,  with  a 
request  that  he  would  take  possession  of 
it.  Held,  that  B,  or  his  house,  had  no  lien 
upon  the  flour  that  could  prevent  A  from 
rescinding  the  contract  with  the  vendor, 
andre-deliveringthe  flour  to  him.  To  con- 
stitute a  lien  upon  a  corporeal  chattel, 
possession   is  essential ;  and  although, 
where  a  fund  is  appropriated  to  an  indivi- 
dual, equity  considers  the  appropriation 
:is  an  assignment,  and  will  protect  it,  yet 
tliis  is  only  where  from  the  nature  of  the 
fund,  manual  possession  and  transfer  are 
impossible.  If  the  chattel  is  susceptible 
of  delivery,  an  appropriation  without  de- 
livery cannot  prevail  against  a  dona  fide 
purchaser  or  quasi  purchaser,  without 
notice.  Clems'jn  v.  Davidson,  v.  392 

8.  Where   a  replevin  issued  for  flour  on 
board  a  ship,  and  the  master  and  con- 
signee made    no    question    about    the 
i're'ght,   but  were  only  desirous  to  pre- 
vent the  ship  from  being  implicated  in 
the  controversy  between  the  respective 
claimants,  both  of  whom  were  willing  to 
send  the  flour  on  in  the  ship.   Held,  that 
the  jury  were  warranted  in  finding  that 
the  clarm  to  the  payment  of  freight,  be- 
fore the  flour  should  be  delivered  to  the 
plaintiff,  was  waived  by  the  master  ;  and 
that  the  judge  was  right  in  instructing 
them  that  the  master's  pleading  property 
in  the  adverse  claimant,  and  not  in  him- 
self, was  evidence  of  the  waiver.    Clem- 
son  v.  Davidson,  v.  392 


9.  Square,  whether  a  master  lias  any  lien  for 
freight  before  the  ship  breaks  ground. 

v.  392 

10.  An  agent  who  effects  insurance  for  his 
principal,  and  becomes   answerable  for 
the  premium,  has  a  lien  upon  the  policy, 
so  long  as  he  retains  it;  but  if  he  delivers 
it  up,  his  lien  is  gone;  and  although  the 
underwriters  are  entitled  to  deduct  the 
premium,  if  unpaid,  from  the  loss,  yet  if 
paid  by  the  agent,  he  has  no  equity  to 
stand  in  their  place  and  to  claim  pay- 
ment out  of  the  sum  due  for  the  loss. 
Cranston  v.  The  Phil.  Ins.  Co.  v.  538 

11.  A  ground  landlord  does  not  lose  his 
lien  for  the  rent  due,  by  taking  a  bond 
and  warrant  of  attorney  for  the  arrears, 
and  entering  up  judgment.    Gordon  v. 
Carrey,  v.  552 

12.  The  mortgagee  of  a  lot  of  a  ground,  has 
a  lien,  not  only  on  the  ground,  but  on  the 
buildings  erected  subsequent  to  the  mort- 
gage, in  preference  to  brickmakers  and 
other  material  men  who  claim  under  the 
lien  law  of  1806.  Lylev.  Ducomb,   v.  585 

13.  A  mortgage  given  to  indemnify  themort- 
gagee  against  loss  in  consequence  of  his 
drawing  notes  in  favour  of  the  mortgagor, 
is  as  valid  where  the  notes  are  to  be  drawn 
in  futuro,   as    where  they  are  already 
drawn;  and  if  the  parties  by  indorsement 
on  the  mortgage  agree,  that  instead  of 
drawing  notes  ibr  the  whole  amount,  the 
mortgagee  shall  indorse  part,  for  which 
the  mortgage  shall  be    a  security,  the 
mortgagee  will  have  a  lien  for  the  in- 
dorsements, not  only  against   the  mort- 
gagor, but  also  against  the  material  men, 
who  subsequently  erect  buildings  on  the 
ground.  Lyle  v.  Ducomb,  v.  585 

14.  The  seller  of  land,  although  he  conveys 
it,  retains  an  equitable  lien  against  the 
purchaser,  and  all  claiming  under  him, 
with  notice  that  the  purchase  money  is 
unpaid.  Irvine  v.  Campbell,  vi.  118 

15.  A  judgment  is  not  a   lien  upon  lands 
subsequently  purchased  by  the  defend- 
ant, and  aliened  before  execution  issued. 
Colhoun  v.  Snider,  vi.  135 

16.  A  discharge  under  the  insolvent  law  of 
13th   March  1812,  does  not  disturb  the 
lien  of  a  judgment.   Clark-  v.  Israe!, 

J  vi.  391 


LIMITATIONS,  ACT  OF. 

1.  A  debt  which  is  barred  by  the  act  of  li- 
mitations, is  not  revived  by  a  clause  in  a 
will,  ordering  all  the  testator's  just  debts 
to  belaid.  Smith  r.  Porter,  i. 209 


590 


GENERAL  INDEX. 


2.  It  is  the  spirit  of  the  act  of  limitations 
to  allow  twenty-one-  years  from  the  time 
that  a  person  might  make  an  entry,  and 
support  an  action,  the  statute  not  stop- 
ping after  it  has  begun  to  run,  in  conse- 
quence of  i  fancy,  coverture  or  any  other 
disability.    But  if  a  party  has  not  a  right 
of  entry,  but  only  a  possibility  which  may 
give  a  nght  of  entry  at  a  future  day,  the 
statute  does  not  run  against  him  until 
that  right  accrues.  Hence,  notwithstand- 
ing the  next  heir  in  tail  releases  to  the 
tenant  in   tail  possession,    the    statute 
does  not  run  against  the  releasor,  until 
the  death  of  the  tenant  in  tail  without 
issue.  Lessee  of  Hall  v.  Vandegrift,  iii.  374 

3.  Title  by  improvement,  is  merely  a  right 
of   pre-emption,  until  the   purchase  is 
made  from  the  Commonwealth.    Up  to 
that  time,  possession  is  not  adverse  to, 
but  iwtfer  the  Commonwealth;  am!  there- 
fore though  it  continue  twenty -one  years, 
it  is  no  bar  by  the  Statute  of  Limitations 
to  the  Commonwealth  or  her  grantee. 
Morris  v.  Thomas,  v.  77 

4.  If  JL  guarantees  to  B  the  performance  of 
any  contract  he  may  make  with  C,  and 
six  years  elapse  after  the  contract  be- 
tween B  and  C,  and  before  the  bringing 
of  suit  against  A  upon  his  guaranty,  no 
acknowledgment  by  C  subsequent  to  the 
contract,  can  take  the  case  out  of  the  sta- 
tute of  limitations  as  to  A.  But  the  decla- 
rations of  C  are  evidence  against  A  to 
prove  the   contract  between  B  and  C, 
though  made  subsequent  to  the  contract. 
Meads  v.  M' Dovsel!,  v.  195 

5.  An    acknowledgment   of  a    subsisting 
debt,  made  within  six  years  before  action 
brought  to  the  executors  of  the  creditor, 
will  not,  where  the  issue  is  upon  the  sta- 
tute of  limitations,  support  a  declaration 
upon  a  promise  to  the  testator  himself. 
There  should  be  a  special  count.  Jones  v. 
Moore,  v.  573 

6.  An  acknowledgment  does  not  revive  the 
old  debt,  but  is  evidence  of  a  new  pro- 
mise, for  which  the  old  debt  is  a  consi- 
deration, ibid. 

7.  The  administrator  of  the  drawer  of  a 
note  wrote  several  letters  to  the  execu- 
tors of  the  indorsee,  recognising  the  ex- 
istence of  the  demand,  but  declining  to 
take  up  the  note.     He  however  finally 
wrote  that  he  would  be  in  town  in  a  few 
days,  and  wiild  settle  the  -matter  in  some 
-.'.•atj.     Held  tltat  this  was  sufficient  evi- 
dence of  a  promise  to  pay.  ibid. 

LOCATION. 

Sec  WARRANT  AND  SuRVEY,,4.  33. 
1.  The  owner  of  a  descriptive  location,  who 


has  paid  the  surveyor's  fees,  and  given 
orders  to  him  to  survey  it  according  to 
its  description,  is  not  bound  by  a  survey 
in  another  place,  until  he  has  been  in- 
formed of  it,  and  has  acquiesced  in  it ; 
and  his  omission  to  look  after  the  sur- 
vey, will  not,  under  such  circumstances, 
amount  to  an  abandonment  of  his  loca- 
tion. Lessee  ofJJavis  v.  Keefer,  iv.  161 

2.  In  the  case  of  a  shifted  location,  where 
the  survey  is  made  on  land  different  from 
that  described,  it  has  no  effect,  except 
against  those  who  have  notice  of  it,  until 
return  into  office,  and  acceptance  by  the 
surveyor-general.    Lessee  of  Lauman  v. 
Thomas  t  iv.  51 

3.  Upon  a  descriptive  location,  the  deputy 
surveyor  surveyed  more  than  the  usual 
excess,  and  without  the  knowledge  of 
the  owner,  cut  off  a  part  of  the  survey 
containing  the  best  lands,  and  answering 
most  accurately  to  the  description,  for 
which  another  person  at  the  deputy's  in- 
stance entered  a  location,  and  got  a  re- 
turn for  himself.    The  owner  of  the  first 
location  not  being  informed  of  the  cir- 
cumstance, entered  upon  the   disputed 
part,  and  improved  it.    Held,  that  the  re- 
turn of  survey  did  not  prejudice  the  old- 
est proprietor,  nor  benefit  the  youngest ; 
and  that  the  oldest  had  title.  Caufman  v. 
Presbyterian  Congregation,  vi.  59 

LOST  DEED. 
See  RECITAL. 

LOTTERY. 

1.  The  defendant  purchased  of  the  plaintiff 
five  hundred  lottery  tickets,  for  which  he 
gave   his  promissory  note,  payable  one 
day  after  the  conclusion  of  the  drawing 
of  the  lottery.  There  was  an  irregularity 
in  the  drawing,  caused  by  inserting  in 
one  wheel   thirty-nine  numbers  twice, 
and  omitting  thirty-nine  numbers  alto- 
gether ;  but  none  of  the  defendant's  num- 
bers were  omitted,  all  the  prizes  were 
duly  paid,  and  he  never  offered  to  return 
any  of  the  tickets  purchased  by   him. 
Held,  that  it  was  not  competent  to  the 
defendant,  to  resist  the  payment  of  his 
note  upon  the  ground  that  the  lottery 
was  not  drawn.  Neilson  v.  'Melt,     ii.  301 

2.  A  ticket  in  a  lottery,  sold  after  the  time 
limited  by  law  for  completing  the  sales, 
confers  no  right  to  recover  the  prize  that 
may  be  drawn  against  it.  Biddis  v.  James, 

vi.  321 

LUNATIC. 

Before  the  return  of  the  inquisition  taken 
under  a  commission  of  lunacy,  the  Court 


GENERAL  INDEX. 


591 


may  appoint  a  receiver  to  the  lunatic's 
estate.  In  the  matter  of  Kenton,      v.  613 

MANDAMUS. 

1.  A  mandamus  lies  to  the  supervisors  of 
the  roads,  to  compel  them  to  pay  an  or- 
der drawn  upon  them  by  justices  of  the 
peace,  under  the  direction  of  an  act  of  as- 
sembly. Common-wealth  v.  Johnson,  ii.  275 

2.  The  Supreme  Court  will  not  grant  a  man- 
damus to  the  trustees  of  an  incorporated 
church,  to  restore  the  prosecutor  to  the 
possession  of  a  pew,  to  which  he  claims 
title,  inasmuch  as  he  has  another  remedy 
by  action  on  the  case  against  the  person 
disturbing  him.  Commonwealth  v.  Rosse- 
ter,  ii.  360 

3.  A  mandamus  does  not  lie  to  the  Common 
Pleas  to  reinstate  an  appeal  which  they 
have  dismissed,  because  in  the  first  place 
their  order  of  dismission  is  an  award  in 
the  nature  of  a  judgment,  upon  which  a 
writ  of  error  lies,  and  in  the  next  place, 
a  mandamus  cannot  go  to  an   inferior 
court  to  compel  them  to  make  any  parti- 
cular decision,  but    merely   to  decide, 
which  the  Common  Pleas  have  already 
done.  Commonwealth  v.  The  Judges  of  the 
Common  Pleas,  iii.  273 

4.  Qutere,  Whether  a  mandamus  lies  from 
the  Supreme    Court  to  the    Common 
Picas  ?  find. 

5.  Wh^re  a  ministerial  act  is  to  be  done, 
and  there  is  no  other  specific  remedy,  a 
mandamus  will  lie  to  do  the  act  required  ; 
but  where  the  complaint   is  against   a 
person  who  acts  in  a  judicial  or  delibera- 
tive capacity,  he  may  be  ordered  by  man- 
damus to  proceed  to  do  his  duty,  by  de- 
ciding and  acting  according  to  the  bes 
of  his  judgment,  but  the  court  will  not 
direct  him  in  what  manner  to  decide 
Commonwealth  v.  Cochran,  v.  8< 

6.  Hence  a  mandamus  will  lie  to  the  secre 
tary  of  the  land  office,  to  compel  him  to 
make  the  calculations  of  purchase  mone] 
and  interest   on  lands   sold,  if  he  has 
omitted  or  wholly  refused  to  doit ;  but  i 
will  not  lie  to  command  him  in  wha 
manner  to  make  the  said  calculations 
that  act  not  being  merely  ministerial 
nor,  if  he  has  already,  under  the  direc 
tion  of  the  board  of  property,  made  th 
calculations  in  an  erroneous  manner,  wil 
it  lie  to  compel  him  to  make  them  in 
proper  manner.  ibid 

7.  An  act  of  the  legislature  directing  th 
county  commissioners  to  draw  an  orde 
for  the  amount  of  a  school-master's  bill 
for  educating  poor  children,  if  they  ap 
prove  thereof,  invests  them  with  the  po\ve 


of  approving  or  disapproving  ;  and  if  they 
disapprove,  though  for  bad  reasons,  this 
Court  cannot  compel  them  by  mandamus 
to  draw  the  order.  The  Commonwealth  v. 
The  County  Commissioners,  v.  536 

.  The  Supreme  Court  may  issue  a  manda- 
mus in  any  of  the  Districts,  notwith- 
standing the  act  of  24th  Feb.  1806,  pro- 
hibits that  Court  from  trying  issues  of 
fact  in  Bank;  because  as  the  return  to  the 
mandamus  must  be  received  as  true, 
until  proved  to  be  false  in  an  action  for  a 
false  return  which  may  be  brought  in. 
some  other  court,  the  Supreme  Court 
may  proceed  to  the  end  of  the  cause 
without  trying  any  fact.  The  Common- 
wealth v.  Commissioners  of  Lancaster 
County,  vi.  5 

9.  A  mandamus  is  not  a  civil  case  within 
the  19th  section  of  the  act  of  24th  Febru- 
ary, 1866,  the  intent  of  that  section  be- 
ing, to  take  away  the  original  jurisdic- 
tion in  civil  actions,  of  which  the  inferior 
courts  had  jurisdiction,  and  not  to  t  »ke 
it  away  in  cases  of  mandamus  and  the 
like,  of  which  those  Courts  had  no  juris- 
diction, ibid. 

10.  The  Supreme  Court  will  not  grant  a 
mandamus  to  the  County  commissioners 
to  draw  an  order  upon  the  treasury,  if 
there  is  no  money  in  the  treasury  to  pay 
it.  ibid. 

11.  The  board  of  property  has  the  same  ju- 
dicial power,  in  regard  to  donation  lands, 
as  in  other  cases;  and  after  they  have 
deliberated  and  decided  against  issuing 
patents,  a  mamlamus  does  not  lie  to  com* 
pel  them.     Commonwealth  v.  Cochran, 

vi.  456 

MARRIAGE. 

See  JUSTICE  OF  THE  PEACE,  8,  9. 

Marriage  is  a  civil  contract,  which  may  be 
completed  by  any  words  in  the  present 
time  without  regard  to  form :  but  if  a 
man  says  to  a  woman,  "  I  take  you  for 
"  my  wife,"  and  the  woman  answers, 
**  to  be  sure  he  is  my  husband,  good 
"  enough,"  referring  to  a  past  illegal 
marriage  and  cohabitation,  this  is  no 
marriage.  Hantz  v.  Sealy,  vi.  405 

MAYOR'S  COURT. 
A  writ  of  error  to  the  Mayor's  Court,  to 
remove  the  record  of  a  prosecution  for 
felony,  or  for  a  misdemeanor  which  sub- 
jects the  offender  to  an  infamous  puuish- 
ment,  is  not  grantable  of  course,  but 
must  have  the  consent  of  the  attorney 
general,  or  a  judge  of  the  Supreme  Court. 
The  Commonwealth  v.  Profit,  iv.  424 


592 


GENERAL  INDEX. 


MESNE  PROFITS. 

In  an  action  for  mesne  profits,  the  record 
of  tin  judgment  in  ejectment  is  conclu- 
sive evidence  that  the  defendant  was  in 
possession  at  the  time  the  ejectment  was 
brought,  and  also  as  to  title  during  the 
whole  time  laid  in  the  demise;  but.  it  is 
not  evidence  of  the  length  of  time  that 
the  defendant  was  in  possession.  Hailey  v. 
Fairplay,  vi.  450 

MILITIA. 

See  COURT,  1. 

MISDEMEANOUR. 
An  indictment  charged  that  Jl  unlawfully, 
secretly,  and  maliciously,  with  force  and 
arms,  broke  and  entered  at  night  the 
dwelling  housed  jfi,  with  intent  to  disturb 
the  peace  of  the  Commonwealth  ;  and 
after  entering  the  house,  unlawfully,  wil- 
fully, and  turbulent ly,  made  a  great  noise 
in  disturbance  of  the  peace  of  the  Com- 
monwealth, and  did  greatly  misbehave 
in  the  said  dwelling  house,  and  did 
greatly  frighten  and  alarm  the  wife  of 
the  said  B,  whereby  she  miscarried,  &c. 
Held>  that  the  offence  laid  was  indictable 
as  a  misdemeanour.  Commonwealth  v.  Tay- 
lor, v.  277 

MISTAKE. 
See  AGREEMENT,  1. 

MONEY  HAD  AND  RECEIVED. 

1.  Where  goods  were  delivered  to  a  factor 
to  sell  and  remit,  and  he  sold  a  part  pay- 
able in  coffee,  and  afterwards  remitted 
sugars  on  account,  but  gave  no  further 
statement  either  of  sales  or  receipts,  the 
jury  were  at  liberty  to  presume  that  the 
amount  sales  had  come  to  his  hands  in 
money,  and  therefore  the  principal  might 
recover  it  upon  a  count  for  money  had 
and  received.    Schee  v.  Has  singer,  ii.  325 

2.  Where  the  principal  assigns  a  fund  to 
trustees  to  pay  a  creditor  whom  the  sure- 
ty afterwards  pays,  and  the  proceeds  of 
the  fund  are  then  paid  over  by  the  trus- 
tees, the  surety  is  entitled  to  the  benefit 
of  the  fund,  and  may  recover  it  from  the 
person  who  possesses  it,  in  an  action  for 
money  had  and  received,    in    his  own 
name.  Miller  v.  Ord,  ii.  382 

3.  An  action  for  money  had  and  received 
will  lie  against  an  executor  in  his  perso- 
nal character,  to  recover  a  distributive 
portion  of  the  testator's  estate  not  dis- 
posed of  by  his  will,  and  which  has  come 
to  the  executor's  hands  as  trustee.  H'ilson 
v.  Wilson,  'in,  557 


MONEY  LAID  OUT  AND  EX- 
PENDED. 

Where  an  agent  proves  the  disbursement 
of  money  for  his  principal,  but  is  unable 
to  fix  the  quantum,  and  accounts  for  not 
producing  vouchers,  by  shewing  a  loss 
or  spoliation  of  his  papers,  the  jury  may 
make  a  reasonable  allowance  without 
further  evidence.  Sulgerv.  Dennis,  ii.  428 

MORE  OR  LESS. 

What  excess  or  deficiency  may  be  intend- 
ed by  "  more  or  less."  Smith  v.  Evans, 

vi.  102 

MORTGAGE. 

See  JOINTENANCY,  1. 

1.  The  assignee  of  the  administrators  of  a 
mortgagee  may  maintain  an  ejectment  in 
his  own  name.  Lessee  of  Simpson  v.  Am- 
mons,  i.  175 

2.  When  the  question,  whether  mortgage 
or  not,  depends  wholly  upon  writings,  it 
is  a  question  of  law  for  the  Court,  and 
should  not  be  left  to  the  jury.  Otherwise, 
if  it  depends  partly  on  parol  evidence 
Warfv.  Hoixdl,  v.  4-99 

3.  Jl,  in  consideration  of  200  dollars,  exe- 
cuted and  delivered  to  B,  an  absolute 
deed  in  fee  simple  of  a  messuage  and  lot 
of  ground  worth  800  dollars.  At  the  same 
time,  B  executed  and  delivered  to  .#  a 

.  deed  of  defeasance,  conditioned  that  if  Jl 
should  within  three  months  pay  to  B  the 
sum  of  200  dollars,  without  any  fraud  or 
further  delay,  and  without  any  deduction 
for  taxes,  the  absolute  deed  should  be 
void,  and  B  should  re -convey.  At  the 
time  of  executing  the  deeds,  the  scrive- 
ner considered  them  in  the  nature  of  a 
mortgage,  and  so  explained  them  to  the 
parties.  Held,  that  although  there  was  no 
covenant  for  the  payment  of  the  money 
lent  and  interest,  the  writings  constitut- 
ed a  mortgage,  upon  which  the  lender 
might  recover  the  money  due,  by  scire 
facias  and  sale;  and  that  if  the  rents  and 
profits  received  by  the  lender  up  to  the 
time  of  trial,  were  equal  to  the  money 
lent  and  interest,  the  borrower  might  re- 
cover in  ejectment,  without  bringing  the 
amount  into  court.  ibiJ. 

4.  A   mortgage  given   to  indemnify  the 
mortgagee  against  loss  in  consequence 
of  his  drawing  notes  in  favour  of  the 
mortgagor,  is  as  valid  where  the  notes 
are  to  be  drawn  in  future,   as  where 
they  are  already  drawn  ;  and  if  the  par- 
ties by  indorsement  on  the   mortgage 
agree,  that  instead  of  drawing  notes  for 
the  whole  amount,  the  mortgagee  shall 


GENERAL  INDEX. 


593 


indorse  part,  for  which  the  mortgage 
shall  be  a  security,  the  mortgagee  will 
have  a  lien  for  the  indorsements,  not 
only  against  the  mortgagor,  but  also 
against  the  material  men,  who  subse- 
quently erect  buildings  on  the  ground. 
Ly!e  v.  IJucomb,  v.  585 

MORTGAGEE. 

A  first  mortgagee  suffering  the  title  deeds 
to  remain  in  the  hands  of  the  mortgagor, 
who  afterwards  executes  a  second  mort- 
gage, is  postponed  in  England  to  the 
second  mortgagee  ;  but  it  has  been  held 
otherwise  in  Pennsylvania.  Lessee  of ' Ma- 
slay  v.  Work,  v.  161 

MOTHER. 

1.  A  mother  has  no  legal  authority  over 
her  son,  nor  any  legal  right  to  his  ser- 
vices, though  he  lives  with  her.    Com- 
monwealth v.  Murray,  iv.  487 

2.  A  mother  is  a  parent,  within  the  act  of 
Congress  of  20th  January  1813,  for  the 
enlistment  of  minors  ;  and  if  the  minor 
has  neither  father,  master  nor  guardian, 
her  consent  is  necessary  to  his  enlist- 
ment. Commonwealth  v.  Gallon,     vi.  255 

MUNICIPAL  LAW. 
There  is  nothing  in  the  law  of  nations  to 
prevent  a  sovereign  from  punishing  the 
violation  of  his  penal  municipal  laws,  by 
seizure  on  the  high  seas,  out  of  his  own 
territory,  and  not  within  the  territory  of 
any  other  sovereign.  Cheriotv.  Foussat, 

iii.  220 

MURDER. 

See  INDICTMENT,  9. 

NATURALIZATION. 

A,  a  British  subject,  emigrated  to  the  Uni- 
ted States  on  the  10th  of  October  1807,  at 
which  time  he  reported  himself  and  an 
infant  son,  agreeably  to  law,  and  declar- 
ed his  intention  to  become  a  citizen  of 
the  United  States.  He  resided  in  Pennsyl- 
vania fom  the  time  of  his  arrival  until 
his  death  on  the  1st  of  October  1809.  Sub- 
sequent to  the  present  war  between  the 
United  State*  and  Great  Britain,  and  after 
the  expiration  of  five  years  from  his  fa- 
ther's arrival,  the  son  petitioned  to  be 
admitted  to  the  rights  of  citizenship 
upon  taking  the  oaths  prescribed  bylaw. 
Held,  thai  as  the  father  himself  if  living 
could  not  be  admitted  to  the  rights  of 
citizenship  during  the  war  with  Great 
Britain,  neither  can  his  son  be  ;  the  pro- 

VOL.  vr. 


viso  in  the  act  of  Congress  of  the  14th  of 
April  1802,  which  denies  the  privileges 
of  citizenship  to  the  subjects  of  a  sove- 
reign with  whom  the  United  States  is  at 
war  at  the  time  of  the  application,  ex- 
tending  to  the  supplemental  act  of  the 
26th  of  March  1804,  which  in  the  case  of 
an  alien  who  has  declared  his  intention, 
&c.,  and  dies  before  he  is  actually  natu- 
ralized, entitles  his  widow  and  children 
to  be  naturalized  on  taking  the  requisite 
oaths.  Ex  pane  Overington,  v.  371 

NAVY. 

1.  Under  the  act  of  Congress  authorizing 
the  President  of   the    United  States  to 
cause  to  be  engaged  certain  able   sea- 
men, ordinary  seamen  and  boys,  to  serve 
in  the  navy,  an  infant  who  is  arrived  at 
years  of  discretion,   and  has  neither  fa- 
ther, master  or  guardian,  may  make  a 
valid  contract  to  serve  according  to  the 
act   Common-wealth  v.  Murray,         iv.  487 

2.  Under  the  constitutional  power  of  Con- 
gress to  provide  and  maintain  a  navy, 
that  body  may  by  law  authorize  minors 
to  enter  into  contracts  for  service  in  the 
navy.  ibid. 

NEGRO  AND  MULATTO. 

1.  When  the  record  of  the  entry  of  a  negro 
or  mulatto  child  in  the  office  of  the  clerk 
of  the  peace,  under  the  act  of  29th  March 
1788,  does  not  bear  any  date,  the  jury 
must  say  whether  it  was  made  on  or  be- 
fore the  1st  of  April  1789.  Jack  v.  Eales, 

iii.  101 

2.  The  act  of  29th  March  1788,  notwith- 
standing it   authorizes  and  requires  the 
clerk  of  the  peace  to  administer  to  the 
claimant  an  oath  in  verification  of  the 
return  he  makes  of  the  age  and  descrip- 
tion of  the  child  &c.,  does  not  prevent  a 
justice  of  the   peace  from  doing  it  by 
virtue  of  his  general  powers.  ibid, 

3.  The  registry  of  a  negro  child,  under  the 
fourth  section  of  the  act  of  29th  March 
1788,  may  be  explained  by  parol  evi- 
dence, if  it  contains  a  mistake  apparent 
upon  the  face  of  it.  The  Commonwealth  v. 
Elaine,  iv.  186 

NEW  TRIAL. 
See  PRACTICE,  11. 

1.  The  day  on  which  the  verdict  is  given, 
is  computed    as    one   of   the  four  days 
which  are  allowed    to  move  for  a  new 
trial.  Lane  v.  Schreiner,  i.  292 

2.  Square,  whether  in  any  civil  case  the  court 
will  grant  »  new  trial  where  there  has 

4F 


594 


GENERAL  INDEX. 


been  no  motion   •within  the  four  days. 
Ewingv.  Tees,  i.450 

3.  When  the  judge  who  tried  the  cause,  is 
not  dissatisfied  with  the  verdict,  it  must 
be  a  very  strong  case  that  will  induce 
the  court  to  grant  a  new  trial,  upon  the 
ground  that  the  verdict  is  against  evi- 
dence. Lessee  of  Cain  v.  Henderson,  ii.  108 

4.  The  plaintiff  brought  his  ejectment  upon 
an  equitable  title,  which  although  per- 
haps not  unfairly  obtained  from  the  de- 
fendant, was  accompanied  by  some  sus- 
picious circumstances,  and  at  all  events 
was  very  indiscreetly  bartered  away  by 
the  defendant.     The  jury,  although  in- 
structed that  the  contract  was  lawful, 
found  a  verdict  for  the  defendant,  which 
the  court  refused  to  set  aside.  Campbell 
v.  Spencer,  ii.  129 

5.  Though  a  verdict  be  against  the  opinion 
of  the  judge  who  tried  the  cause,  yet  if 
it  turned  upon  the  credit  of  witnesses,  a 
new  trial  will  not  be  granted,  except  in 
extraordinaav  cases.    Lessee  of  Fehl  v. 
Good,  ii.  495 

6.  The  discovery  of  material  evidence  after 
the  trial,  which  by  using  due  diligence 
the  party  might  have  discovered  before, 
is  no  ground  for  a  new  trial.    Knox  v. 
Work,  ii.  582 

7.  After  two  verdicts  in  favour  of  the  same 
party  upon  a  simple  matter   of  fact,  it 
must  be  an  extraordinary  case  in  which 
the  court  will  grant  a  new  trial,  though 
they  have  an  undoubted  right  to  do  it ; 
but  it  is  otherwise  where  matter  of  law 
has  been  disregarded  by  the  jury.  Lessee 
of&ble  v.  Arthurs,  iii.  26 

8.  To  justify  a  new  trial,  the  mistake  of 
the  jury  in  law  or  fact  must  be  plain,  or 
the  verdict  must  be  decidedly  against 
the  evidence.    It  is  not  enough  that  the 
court  did  not  look  upon  the  evidence  in 
the  same  light  as  the  jury,  or  that  they 
would  not  have  found   such  a  verdict 
themselves.  Griffith  v.  Willing,        iii.  317 

9.  Upon  granting  a  new  trial,  the  court,  if 
they  think  it  expedient,  will  lay  the  party 
who  applies  for  it,  under  a  condition  to 
try  the  merits  without    regard   to   the 
form  of  the  declaration.  Welsh  v.  Dusar, 

iii.  329 

10.  There  is  no  rule  of  law  against  granting 
anew  trial  after  two  concurring  verdicts, 
nor  will  the  court  hesitate  to  do  it,  if  the 
verdicts  are  against  law.    Commissioners 
of  Berks  v.  Boss,  iii.  520 

11.  The    principle    which    has   governed 
courts  in  refusing  the   plaintiff  a  new 
trial,  where  his  demand  has  been  a  hard 
one,  does    not   in   any  degree  apply  to 


actions  against  sureties  for  the  default  of 
a  principal.  Although  a  surety  may  be 
distressed  by  the  demand,  yet  it  is  not 
in  point  of  law  a  hard  one.  iii.  520 

12.  A  new  trial  granted  after  two  verdicts 
the  same  way  in  ejectment,  where  there 
was  ground  to  apprehend  that  the  jury 
had  erred,  and  the  statute  of  limitations 
would  bar  a  new  suit.  Lessee  of  Mitchell 
v.  Mitchell,  iv.  180 

13  When  a  point  is  reserved  at  the  trial, 
the  rule  which  requires  ten  days'  pre- 
vious notice  of  a  motion  for  a  new  trial, 
is  dispensed  with.  Beinouldt  v.  Jlublai, 

iv.  378 

14.  New  trial  granted,  the  plaintiff  having 
been  surprised  by  evidence  of  a  payment, 
sworn  to  at  the  trial    by  two  witnesses, 
who,  there  was  strong  reason  to  believe, 
had   been   tampered    with.    Peterson  v. 
Barry,  iv.  481 

15.  If  after  a  jury  are  sworn,  arid  before  the 
verdict,  one  of  the  parties  learns  that  a 
jui-or  before    he  was   impannelled,  de- 
clared that  he  had  made  up  his  mind 
against  him,  he  must  make  it  known  at 
once,  if  he  intends  to  rely  on  it.  He  must 
not  take  the  chance  of  a  verdict  in  his 
favour,  and  upon  its  being  the  other  way, 
move  for  a  new  trial  upon  the  declara- 
tions of  the  juror.   M'Corkle  v.  Binns, 

v.  340 

16.  The  court  may  grant  a  second  new  trial, 
where  merely  facts  are  in  controversy  ; 
but  it  ought  only  to  be  in  extraordinary 
cases.  Clemson  v.  Davidson,  v.  392 

NON  PROS. 

If  bail  in  error  is  not  perfected  within  ten 
days  after  exception,  the  defendant  in 
error  is  entitled  to  a  non  pros.  Taggart 
v.  Cooper,  iii.  34 

NONSUIT. 

1.  It  is  not  in  the  power  of  the  court  to  or- 
der a  nonsuit  against  the  consent  of  the 
plaintiff.    He  may  refuse  to  enter  it,  and 
insist  upon  taking  a  verdict.    Girardv. 
Gettig,  ii-  234 

2.  Arbitrators  have  no  authority  to  award  a 
nonsuit.     If  the  plaintiff  fails  to  attend, 
the  proper  award  is  that  he  has  no  cause 
of  action.  Miller  v.  Miller,  v.  62 

NOTICE. 

See  AGENT,  5. 

DEPOSITIONS,  2.4. 

FRAUDS  AND  PERJURIES,  5. 

IMPROVEMENT,  11. 

PATENT,  2. 

WARRANT  AND  SURVEY,  4.  24.26. 


GENERAL  INDEX. 


595 


1.  The  registry  of  a  deed  defectively  proved 
or  acknowledged,  is  not  constructive  no- 
tice  to  a  subsequent  purchaser,  although 
the  registry  be  made  in  the  proper  county. 
Lessee  of  Heister  v.  Partner,  ii.  40 

2.  On  the  28th  April  1788,  A.  assigned  to 
trustees  for  the  benefit  of  creditors  all 
his  lands  in  the  county  of  JV.  &c.;  and  the 
same  day  acknowledged  the  deed  before 
a  judge  of  the   common  pleas  of  the 
county  of  M.,  who  at  that  time  had  no 
authority  to  receive  an  acknowledgment 
of  deeds  for  lands  out  of  his   proper 
county.     On  the  26th  February  1790  the 
assignment  was  recorded  in  the  county 
of  JV     On  the  25th  March  1789  B.  ob- 
tained judgment  against  A.  in  the  county 
of  M.    On  the  15th  March  1792  he  exe- 
cuted an  instrument  recognising  the  as- 
signment of  A.,  and  agreeing  to  be  bound 
by  its  terms.  To  February  term  1796,  B's 
executors  issued  a  scire  facias  to  revive 
the  judgment,  and  signed  judgment  upon 
the  return  of  one  nihil.     To  August  1797 
they  issued  a  test-  fi.  fa.  to  the  county  of 
JV.  and  a  test.  vend.  exp.  to  November  1797, 
upon  which  certain  of  the  laiids  assigned 
by  A.,  were  sold  to  C.  the  lessor  of  the 
plaintiff.    Held,  that  although  the  judg- 
ment upon  one  "  nihil "  was  erroneous, 
and  actual  notice  of  the  assignment  was 
brought  home  to  B.,  which  made   the 
subsequent  proceedings  a  fraud  upon  the 
creditors,  yet  as  the  assignment  was  de- 
fectively acknowledged,   the   record  in 
N.  was  no  notice  to  C.  who  being  a  bona 

Jide  purchaser  at  sheriff's  sale  without 
notice,  was  entitled  to  recover.         ii.  40 

3.  The  purchaser  under  a  patent  from  the 
Commonwealth,  is  bound  to  take  notice 
of  the  title  recited  in  the  patent,  and  is 
affected  with  notice  of  what  appears  on 
that  title,  although  it  is  contrary  to  the 
patent.  Lessee  of  Willis  v.  Bucket;    ii.  455 

4.  The  recording  act  of  1775  does  not  make 
void  an  unrecorded  deed,  as  against  a 
subsequent    purchaser    without   notice, 
under  a  title  totally  unconnected   with 
that  deed,  but  only  as  against  purchasers 
under  the  same  grantor.   Lessee  of  Henry 
v.  Morgan,  ii.  497 

5.  A  survey  returned  is  legal  notice.    Lessee 
of  Cox  v.  Cromwell,  iii.  119 

6.  No  verdict  can  be  recovered  against  a 
justice  of  the  peace  for  the  penalty  of  50/. 
imposed  by  the  act  of  14th  February  1729, 
upon  his  joining   in    marriage  a  minor 
without  consent  of  parent  or  guardian, 
unless  previous  notice  is  given  to  the  jus- 
tice, according  to  the  act  of  21st  March 
1772.     But  although  it  is  necessary  that 
this  notice  should  be  given,  and  should 


precisely  indicate  the  cause  of  action,  it 
is  not  necessary  that  it  should  state  the 
kind  of  writ,  it  is  intended  to  sue  out. 
Mitchell  v.  Cawgill,  iv.  20 

7.  The  assignment  or  bargain  and  sale  of  a 
warrant  and  survey,  is  within  the  record- 
ing act  of  18th  March  1775,  and  therefore 
if  not  recorded  within  six  months,  is  void 
against  a  subsequent  purchaser  without 
notice  ;  but  if  the  first  bargainee  or  pur- 
chaser obtains  a  patent  upon  the  warrant 
and  survey,  and  then  the  bargainer  sells 
and  conveys  them  over  again,  the  non- 
registry  of  the  assignment  is  immaterial, 
because  the  patent  is  notice.     Lessee  of 
Carrey  v.  Caxtan,  iv    140 

8.  A  sold  goods  to  B,  payable  at  60  days 
with  interest  thereafter,  to  be  paid  when 
taken  away,  not  to  exceed  90  days.     B 
did  not  take  the  goods  away  in  the  time 
prescribed.     Afterwards  A,  who  was  a 
commission  merchant,  agreed  to  take  the 
goods  on  sale  for  B,  and  to  credit  him 
with  the  proceeds  ;  and  3  engaged  to 
make  up  any  loss  that  might  accrue  on 
the  sales.    Held  that  A  was  not  bound  to 
sell  at  all  events,  but  only  to  use  reasona- 
ble exertions;  and  after  these  had  failed, 
and  notice  given  to  B  to  pay  for  the  goods 
and  take  them  away,  A  might  maintain 
an  action  for  the  price;  but  the  notice  to 
B  was  indispensable.  Hazard  v.  Van  Am- 
ringe,  iv.  289 

9.  Where  a  point  is  reserved,  a  motion  may 
be  made  for  a  new  trial,  without  previous 
notice.  Reinouldt  v.  Aublai,  iv.  378 

10.  If  by  the  deed  of  conveyance,  or  other 
instrument  transferring  the  title,  it  ap- 
pears that  the  time  for  paying  a  part  of 
the  purchase  money  has  not  yet  arrived, 
a  purchaser  under  that  title  at  sheriff's 
sale  or  otherwise  IG  answerable  for  all 
that  by  the  terms  of  the  instrument  was 
not  due  at  the  date  of  the  purchase.  But 
if  by  a  distinct  instrument  between  the 
original  parties,  the  land  is  pledged  for 
the  whole  purchase   money  due  as  well 
as  not  due,  a  purchaser  is  not  bound  by 
this  unless  duly  recorded.  Irvine  \.  Camp- 
bell, Yi.  118 

NOTICE  TO  QUIT. 

1.  Notice  to  quit  at  the  end  of  a  certain 
year,  is  not  w..ived  by  the  landlord's  per- 
mitting the  tenant  to  remain  in  posses- 
sion   an   entire   year   after   the    expira- 
tion of  the  notice.  Hoggs  v.  Black,  i.  333 

2.  The  notice  to  quit,  required  by  the  land- 
lord and  tenant  law,  must  be  given  three 
months  before  the  end  of  the  term.  Brown 
v.  Vanborn,  i.  334 


596 


GENERAL  INDEX. 


NUDOM  PACTUM. 

See  CONSIDERATION,  1,  2. 

NUISANCE. 

1.  To  support  an  action  on  the  case  for 
damage  occasioned  by  a  common  nui- 
sance, it  is  not  necessary  that  the  damage 
sustained  should  have  been  direct,  it  is 
enough  if  it  was  consequential  Hughes  v. 
Heiser,  i.  463 

2-  The  plaintiff  declared  that  he  had  pre- 
pared rafts,  with  intent  to  navigate  them 
down  a  river,  which  was  a  public  high- 
way; and  that  he  did  navigate  them,  until 
he  came  to  a  dam  erected  by  the  defen- 
dant, by  which  he  was  prevented  from 
passingdown  the  river  with  his  rafts.  This 
is  a  sufficient  special  damage  to  support 
an  action.  ibid. 

OATH. 

See  JUSTICE  OF  THE  PEACE,  7. 
NEGRO  AND  MULATTO,  2. 
WARRANT. 

OBLIGATION. 

1.  Though  a  bond,  given  for  a  larger  sum 
than  is  due,  for  the  purpose  of  defraud- 
ing creditors,  is  wholly  void  against  cre- 
ditors, yet  if  creditors  are  permitted  to 
take  defence  as  to  the  quantum  due,  upon 
the  plea  of  payment,  the  obligee  is  enti- 
tled to  a  verdict  for  the  sum  due,  though 
the  plea  of  payment  in  form  goes  to  the 
whole.   Numan  v.  Kapp,  v.  73 

2.  The  assignee  of  a  bond  takes  it  subject 
to  all  the  equity  which  the  obligor  has 
against  the  obligee,  unless  the  obligor 
promoted  the  assignment;  and  therefore 
in  a  suit  by  the  assignee,  it  is  competent 
to  the  obligor  under  the  plea  of  payment 
to  shew  that  the  bond  was  given  for  lands 
to  which  the  obligee  had  no  title.   But  if 
the  obligor  at  the  time  of  purchase  took 
a  bond  with  surety  for  the  conveyance  of 
a  good  title,  and  a  suit  on  that  bond  is 
pending,  he  cannot  object  the  failure  of 
consideration,  unless  he  proves  the  in- 
solvency of  both  principal  and  surety  in 
the  suit  he  has  himself  commenced,  or 
proves  that  he  has  sustained  a  damage, 
in  addition  to  the  loss  of  the  title.     Solo- 
tn»n  v.  Kimmel,  v.  232 

OFFICE. 

One  who  has  an  authority  to  appoint  to  a 
public  office,  cannot  appoint  himself.  The 
Commonwealth  v.  Douglass,  i,  77 

OFFICER. 
See  DONATION  LAND. 


OFFICIAL  BOND. 

1 .  The  party  who  first  brings  suit  upon  an 
official  bond  is  entitled  to  priority  of  pay- 
ment,  although   he   is  prevented   from 
obtaining  judgment  by  an  order  to  stay 
proceedings,  upon  the  defendant's  pay- 
ing the  amount  of  the  bond  into  court. 
All  subsequent  suitors  to  the  same  term 
are  entitled  pro  rata,-  but  if  instead  of 
suing  they  apply  to  the  Court  to  come  in 
under  the  first  suit,  priority  of  applica- 
tion will  entitle  them  to  priority  of  pay- 
ment. M*Kean  v.  Shannon,  i.  370 

2.  The  bond  of  the  prothonotary  of  the 
Common  Pleas  though  not  required  by 
any  law,  is  binding  upon  him  and  his 
sureties  as  a  voluntary  bond  ;  and  being 
in  the  first  place  for  the  use  of  the  Com- 
monwealth, a  payment  under  it  to  an 
individual  creditor  of  the  prothonotary, 
is  at  the  surety's  peril.     The  Common- 
wealth  must   be   first   satisfied  to  the 
amount  of  the  whole  penalty.    Common- 

v  -wealth  v.  Wolbert,  vi.  292 

ORDER  OF  REMOVAL. 

1.  An  order  removing  a  married  woman  to 
the  place  where  she  was  last  legality  set- 
tled before  her  marriage,  is  not  defec- 
tive, because  it  omits  to  state  that  her 
husband  had  no  known  legal  settlement. 
This  court  will  not  presume  that  he  had 
any  such  settlement.     Overseers  of  Read- 
ing v.  Overseers  of  Cumree,  v.  81 

2.  No  intendment  is  to  be  made  against  an 
order  of  removal.  ibid. 

3.  On  appeals  to  the  Sessions  from  orders 
of  removal  by  two  justices,  that  Court  is 
to  decide  according  to  the  merits,without 
regard  to  defects  in  the  orders.         ibid. 

ORPHANS'  COURT. 

1.  The  orphans'  court  may  if  necessary  di- 
rect an  issue,  to  settle  a  disputed  fact. 
Yoke  v.  'Barnet,  i.  358 

2.  Ji  obtains  judgment  against  B  his  son  in 
law,  and  then  dies  intestate   seized   of 
real  estate,  and  leaving  several  children, 
among  whom  is  the  wife  of -B.   The  real 
estate  is  divided  into  fewer  parts  than 
there  are  children,  and  they  are  allotted 
accordingly  under  the  direction  of  the 
law,  that  a  bond  shall  be  given  by  those 
who  take  the  land  to  the  other  children, 
JB's  wife  among  the  number,  for  their 
respective  purparts.    B  is  insolvent,  and 
his  debt  to  .4  unpaid.  The  orphans'  court 
may  order  Jfs  debt  to  be  deducted  from 
the  amount  of  the  bond  for  his  wife's 
part.  ibid* 

3.  If  there  are  errors  in  an  account  report- 


GENERAL  INDEX. 


597 


ed  by  auditors  to  the  Orphans'  Court, 
and  confirmed  by  their  decree,  the  Su- 
preme Court  upon  an  appeal  will  rectify 
them  as  the  Orphans'  Court  should  have 
done,  and  not  set  aside  the  whole  ac- 
count. The  auditors  are  mere  clerks. 
Guier  v.  Kelly,  ii.  296 

4.  The  appointment   of  appraisers  by  an 
Orphans'  Court,  under  the  act  of  1764, 
to  value  the  lands  of  an  intestate,  and  a 
decree  adjudging  them  at  the  valuation 
to  one  of  the  children,  when  at  the  same 
time  the  record  shews  no  petition  to  the 
court  by  the  widow  or  any  of  the  chil- 
dren, no  consent  of  parties  to  the  ap- 
pointment, no  appearance  of  the  other 
children  by  guardian  or   otherwise,  or 
notice  to  them,  but  on  the  contrary  plain 
evidence  that  none  did  appear,  are  abso- 
lutely void ;  and  this  may  be  taken  ad- 
vantage of  by  one  of  the  children  in  an 
ejectment  against  him  to  whom  the  pro- 
perty was   adjudged,    or  his  vendees. 
Messinger  v.  Kintner,  iv.  97 

5.  Although  after  a  length  of  time,  pre- 
sumptions may  be  made  in  favour  of  what 
does  not  appear,  in  order  to  support  the 
decree  of  an  Orphans'  Court  at  an  early 
day,  when   its  proceedings  were  proba- 
bly irregular,  yet  there  can   be  no  pre- 
sumption against  what  does  appear,  ibid. 

6.  An  unauthorized  decree  of  an  Orphans' 
Court  for  the  sale  of  lands,  will  not  stand 
until  reversed  in  a  regular  course  of  ap- 
peal, but  may  be  questioned  in  a  colla- 
teral suit  by  or  against  a  person  claiming 
under  that  decree.  ibid. 

7.  A  decree  of  the  Orphans'  Court  order- 
ing lands  to  be  sold  for  the  payment  of 
debts,  void,  because  at  the  time  of  the 
decree,  no  administration   account  set- 
tled. Lessee  of  Larnmer  v.  Irviin,  iv.  104 

8.  The  decree  of  an  Orphans'  Court,  or- 
dering the  real  estate  of  an  intestate,  at 
the  valuation,  to  his  oldest  son,  is  not 
void,  as  against  a  minor  child,  merely  be- 
cause the  minor  did  not  appear  by  guar- 
dian.   No  act  of  assembly  requires  such 
appearance,  and,  the  proceedings  not  be- 
ing in  the  nature  of  an  adversary  suit  at 
common  law,  notice  to  the  minor,  or  to 
those  having  the  care  of  his  interests,  is 
sufficient.  Elliot  v.  Elliot,  v.  1 

9.  A  sale  by  order  of  Orphans'  Court  is  not 
conclusive  until  reversed  on  appeal,  but 
may   be    questioned    in    an    ejectment. 
Lessee  of  Snyder  v.  Snyder,  vi.  483 

OVER. 
See  PLEADING,  6.    PRACTICE,  14. 


OYER  AND  TERM1NER. 

Precepts  for  Courts  of  Oyer  and  Terminer 
may  issue  under  the  private  seals  of  the 
judges  appointing  such  courts  :  No  seals 
are  required  for  the  courts  themselves. 
White  v.  Tlie'Common-wealth,  vi.  179 

PAROL  AGREEMENT. 
See  FRAUDS  AND  PERJURIES. 

PAROL  EVIDENCE. 

See  TRUST,  3. 

1.  The  registry  of  a  negro  child,  under  the 
4th    section  of  the   act  of  29th  March 
1788,  may  be  explained  by  parol  evidence, 
if  it  contains  a  mistake  apparent  upon 
the  face  of  it.    Commonwealth  v.  Elaine, 

iv.  186 

2.  Entry  on  the  26th  June  1807,  of  the  name 
&c.  of  a  negro  child  born  on  the  2d  Ja- 
nuary 1808  ;  registry  not  void,  but  parol 
evidence  admitted  to  shew  that  the  child 
was  born  on  the  2d  of  January  1807,  and 
therefore  that  the   registry  was  made 
within  six  months  after  his  birth,  agree- 
ably to  the  act.  ibid. 

3.  Parol  evidence  is  inadmissible  to  shew 
that  half  an  acre  of  laud  included  in  a 
deed  by  administrators,   was  excepted 
out  of  the  estate  at  the  time  of  sale,  les- 
see of  Snyder  v.  Snyder ,  vi.  483 

4.  So  it  is  inadmissible  to  shew  that  a  she- 
riff had  under  execution  the  body  and 
lands  of  a  third  person.    The  execution 
should  be  shewn  by  the  records.        ibid. 

PAROL  SALE. 

See  FRAUDS  AND  PERJURIES,  3. 

PARTITION. 

See  FISHERY,  2. 

ORPHANS'  COURT,  4.  8. 

1.  The  statute  of  8  and  9  W.  3.  c.  81,  con- 
cerning  partitions,  does  not  extend  to 
this  state.  M'Kee  v.  Straub,  ii.  1 

2.  One  of  three  defendants  in  a  writ  of  par- 
tition was  tenant  of  the    freehold,  and 
died   after   action  brought,   and  before 
trial  ;  the  other  two  were  his  tenants  for 
years  or  at  will.    Held  that  the  writ  was 
abated  by  his  death  ;  and  if  not  the  sur- 
vivors were  entitled  to  a  verdict  upon 
the  plea  of  non  tenent  insimtiL  ibid. 

PARTNERS. 

i .  In  order  to  reach  the  estate  of  a  deceased 
partner,  an  action  for  a  partnership  debt 


598 


GENERAL  INDEX. 


lies  against  his  executor  if  the  surviving 
partner  be  a  certificated  bankrupt  before 
action  brought.  Lang  v  Keppelc,  i.  123 

2.  One  partner  cannot  maintain  assumpsit 
against  the  other,  for  the  proceeds  of  a 
partnership  adventure,  unless  they  have 
settled  their  accounts  and  struck  a  ba- 
lance.  Ozeas  v.  Johnson,  i.  191 

3.  If  one  of  two  joint  partners  releases  to  a 
debtor  of  the  partnership,  notwithstand- 
ing lie  had  no  authority  to  release  more 
than  his  own  moiety  of  the  debt,  the  ac- 
tion against  the  debtor  is  gone.    Salmon 
v.  Davis,  iv.  375 

PARTNERSHIP. 

The  existence  of  a  written  agreement  of 
partnership  bet  ween  the  defendants,  does 
not  preclude  the  plaintiff  from  proving  a 
partnership  by  the  actions  or  declarations 
of  the  parties.  Widdifieldv.  Widdtfield, 

ii.245 

PATENT. 

See  EVIDENCE,  23. 

NOTICE,  3. 

1.  A  patent  is  prima  facie  evidence  of  title 
and  of  survey.  Lessee  oj  James  v.  Betz, 

ii.  12 

2.  If  the  first  purchaser  or  bargainee  of  a 
warrant  and  survey,  obtains  a  patent,  and 
then  the  bargainer  sells  them  again,  the 
second  purchaser  takes  at  his  own  peril, 
because  the  patent  is  notice,  although 
the  bargain  and  sale  of  the  warrant  and 
survey,  have  not  been  recorded.   Lessee 
of  Carrey  v.  Caxton,  iv.  140 

3.  A  warrant  and  survey  are  sufficient  title 
to  support  an  ejectment ;  but  the  legal 
title  is  not  complete  till  the  issuing  of  the 
patent.  iv.  145 

4.  A  patent  for  land  which  has  been  sur- 
veyed under  a  warrant  issued  from  the 
land  office  since  the  22d  of  September 
1794,  is  only  prima  facie  evidence  that 
the  warrant  issued  regularly,  and  that 
the  settlement  required  by  that  act  has 
been  made.  Bixkr  v.  Baker,          iv.  213 

5.  A  patenbgranted  upon  a  warrant  fraudu- 
lently obtained  under  the  act  of  22d  of 
September  1794,  without  the  requisite  set- 
tlement, cannot  prevail  against  a  settle- 
ment made   by   another  person   subse- 
quent to  the  fraudulent  warrant,  but  be- 
fore the  patent  was  obtained.  ibid. 

6.  The  principles  of  the  law  of  England, 
must  not  be  applied  in  their  full  extent  to 
the  case  of  a  legal  estate  acquired  in  this 
Commonwealth  by  patent.  The  question 
here  is  generally,  not  who  has  got  the 
patent,  but  who  on  principles  of  law  and 


equity  ought  to  have  had  it,  when  it 
issued.  It  is  not  true  that  he  who  obtains 
a  patent  shall  avoid  all  titles  by  warrant 
and  survey  of  which  lie  has  no  notice  ; 
for  a  warrant  and  survey  are  in  most  re- 
spects considered  as  a  legal  estate,  ex- 
cept as  against  the  Commonwealth.  They 
are  subject  to  the  same  laws  of  descent, 
devise  and  conveyance  as  the  legal  estate. 
They  are  subject  to  dower  and  curtesy ; 
and  an  ejectment  may  be  maintained  on 
them.  Lessee  ofMaclay  v.  Work,  v.  154 

PAUPER. 

See  ORDER  OF  REMOVAL. 
SETTLEMENT. 

PAYMENT. 
See  PLEADING,  1,  2.  7. 
The  entry  of  a  check  as  cash,  made  in  the 
private  bankbook  of  the  holder,  is  equi- 
valent to  payment ;  and  if  the  check  is  a 
forgery,  of  which  the  holder  was  igno- 
rant,  the  bank  must  support  the  loss. 
Levy  v.The  Bank  of  the  United  States,  i.  27 

PENALTY. 
See  PLEADING,  1. 

1.  Where  a  penalty  has  for  its  end  to  in- 
sure the  performance  of  the  principal 
obligation,  it  does  not  destroy  it.    Canal 
Company  v.  Sansom,  i-  70 

2.  A  penalty  inflicted  by  an  act  of  assembly 
for  the  doing  a  particular  thing,  implies 
a  prohibition  of  that  thing.    Mitchell  v. 
Smith,  i.  110 

PENITENTIARY. 

Prior  to  the  act  of  4th  Jpril  1807,  no  per- 
son convicted  of  perjury  in  any  of  the 
counties  in  this  state,  except  the  county 
of  Philadelphia,  could  be  sentenced  to  im- 
prisonment in  the  gaol  and  penitentiary 
of  the  city  and  county  of  Philadelphia. 
Barlow  v.  The  Common-wealth,  iii.  1 

PERJURY. 

1.  Persons  convicted  of  perjury,  are  liable 
to  fine  and  imprisonment  at  hard  labour, 
but  not  to  any  particular  kind  of  treat- 
ment as  to  diet  or  discipline.  A  sentence 
therefore  which  adjudges  that  the  con- 
vict shall  be  confined,  fed,  clothed,  and 
treated  as  the  law  directs,   is  erroneous. 
Kramer  v.  The  Commonwealth,       iii.  577 

2.  One  who  swears  wilfully  and  deliberate- 
ly to  a  matter  that   he  rashly  believes, 
but  which  he  has  no  probable  cause  for 
believing,  and  which  is  false,  is  guilty  of 
perjury.  Commonwealth  v.  Cornish,  vi.  249 


GENERAL  INDEX. 


599 


PITTSBURG. 
See  ALIEN,  1. 

PLANTATION. 
See  DEVISE,  3. 

PLEADING. 

1.  Where  a  defendant  pleads  payment  to  an 
action  of  debt  on  a  bond,  and  attempts 
to  defeat  the  bond  by  giving  evidence  of 
fraud,   or    want  of   consideration,    but 
makes  no  set-off,  the  plea  is  not  under 
the  defalcation  act,  but  is  allowed  under 
the  equity  powers  of  the  court,  to  give 
the  defendant  an  equitable  defence,  and 
therefore  if  he  fails,  the  judgment  shall 
be  entered  for  the  penalty.  Sparks  v.  Gar- 
rigues,  i.  152 

2.  Under  the  plea  of  payment  to  a  scire  fa- 
cias to  revive  a  judgment,  the  defendant 
may  give  in  evidence  that  when  he  exe- 
cuted the  bond  and  warranl,  upon  which 
the  judgment  was  confessed,  the  plaintiff 
promised  to   cancel  it  upon   an    event 
which  has  occurred  since  the  judgment. 
Hartzdl  v.  Reins,  i.  289 

3.  It  seems,  that  in  an  action  on  the  case  in 
the  nature  of  a  writ  of  conspiracy,  it  is 
not  necessary  to  declare  that  the  con- 
spiracy   was   without   probable   cause  ; 
"falsely  and   maliciously,"   is  enough. 
Griffith  v.  QS ie,  i.  172 

4.  A  count  charging  man  and  wife  upon  a 
joint  assumption,  in  consideration  of  mo- 
ney had  and  received  by  them   to  the 
plaintiff's  use,  is  bad.    Grosser  v.  Eckart, 

i.  575 

5.  In  slander  the  declaration  is  good,  though 
it  charge  that  the  defendant  spoke  cer- 
tain  words  in  substance  as  follows,   &c. 
Kennedy  v.  Loviry,  i.  393 

6.  The   plaintiffs  declared   upon  a  bond 
dated  the  20th  day  of  May  1799.  The  de- 
fendants craved  oyer,  and  then  pleaded 
payment,  upon  which  issue  was  joined. 
Held  that  upon  this  issue  after  oyer  the 
plaintiff  might  give  in  evidence  a  bond 
dated   the    twentieth   eght  day  of  May 
1799.  Douglass  v.  Beam,  ii.  76 

7.  The  plea  of  "  layman  and  unlettered, 
&c."  is  not    necessary  in   Pennsylvania. 
Fraud  either  in  the  execution  or  the  con- 
sideration  of  a  bond  may  be  given  in  evi- 
dence under  the  plea  of  payment.  Baring 
v.  Shippen,  ii.  154 

8.  The  plaintiff  declared  upon  a  promise  on 
the  8th  July  1805  to  pay  him  eight  hun- 
dred dollars  per  annum,  and  to  find  him  a 
lodging  room,  bed,  and  fuel;  and  laid 


breaches  of  the  contract,  upon  which  the 
jury  assessed  general  damages.  Judg-  • 
ment  was  reversed,  because  it  appeared 
by  the  record,  that  the  action  was 
brought  before  the  eight  hundred  dollars 
were  due.  Gordon  v.  Kennedy,  ii.  287 

9.  Where  the  plaintiff  declares  upon  a  con- 
tract consisting  of  several  parts,  and  as- 
signs among  other  breaches,  one  which 
from   his  own    shewing  could  not  have 
taken    place    before    the     action    was 
brought,  the  court  cannot  intend  that  the 
damages,   if   assessed  generally,   were 
given  only  for  that  matter  in  the  count 
which  was  actionable,  and  therefore  will 
reverse  the  judgment.  ii.  287 

10.  The  plaintiff  declared,  that  he  informed 
the  defendant  he  was  apprehensive  that 
he  should  have  to  pay  certain   bonds   in 
which  he  was  joined  wifh  bis  principal, 
and  that   he  mould    we    the    principal, 
whereupon   in    consideration    that    the 
plaintiff  -would  refrain  from  suing,  the  de- 
fendant promised  to  save  him  harmless, 
&c.  After  verdict,  this  is  to  be  intended 
an  agreement  to  forbear  suit,  after  he  had 
paid  the  money.     Hamaker  v.  Eberley, 

ii.  506 

11.  In  an  action  of  slander,  it  is  enough  if 
it    be    substantially    alleged    that    the 
words  were  spoken  of  the  plaintiff;  an 
express  averment  of  that  fact  is  not  ne- 
cessary. Bravin  v.  Lamberton,  ii.  34 

12.  The    short  entry  of  "  not  guilty  with 
"  leave  to  justify,"  by  two  or  more  de- 
fendants, may  be  considered  a  several 
justification  by  each  defendant.  Kerlin  v. 
Heacoct,  Hi.  215 

13.  Slander  of  husband  and  wife  cannot  be 
joined  in   the   same  count.    Ebersoll  v. 
•Kri'g,  iii.  555 

14.  In  an  action  by  an  executor  or  admi- 
nistrator, the  count  may  conclude   "  to 
"  his  damage,"  without  saying  "as  exe- 
"cutor."     Martin  \.  Smith,  v.  16 

15.  Assumpsit  will  lie  for  an  ascertained 
money  legacy  ;  and  the  plaintiff  may  in 
the  same  count  go  for  an  unascertained 
residuary  legacy.  Clark  v.  Herring,  \.  33 

16.  An  acknowledgment  of  a  subsisting 
debt,  made  within  six  years  before  ac- 
tion brought,  to  the  executors  of  the  cre- 
ditor, will  not,  where  the  issue  is  upon 
the  statute  of  limitations,  support  a  de- 
claration upon  a  promise  to  the  testator 
himself.  There  should  be  a  special  count. 
Jones  v.  Moore,  v.  573 

17.  Short  pleas  are  admissible  only  by  con- 
sent. If  either  party  requests  his  adver- 
sary to  draw  up  his"  plea  at  large,  and  he 


600 


GENERAL  INDEX. 


refuses,  it  is  good  cause  of  special  de- 
murrer.  Haak  v.  Breidenbach,         vi.  12 

18.  Where  several  things  are  to  be  done  by 
the  plaintiff,  precedent  to  the  perform- 
ance of  the  defendant's  part  of  the  agree- 
ment, it  is  necessary  for  the  plaintiff'  to 
aver  performance  of  all  the  things  to  be 
done  by  him.    But  if  the  performance  of 
a  part  is  not  averred,  and  it  appears  by 
the   defendant's  plea,  or  by  his   notice 
under  the  plea,  that  the  part  in  question 
was  performed,  the  declaration  is  cured. 
Zerger  v.  Sailer,  vi.  24 

19.  Statement  in  ejectment  against  one  de- 
fendant, filed  before  the  first  term:  after- 
wards the  sheriff  according  to  the  com- 
mand of  his  writ  summoned  as  defendant 
another  person  found  in  possession.  Jltid, 
that  the  statement  was  right;  and  that  if 
the  name  of  the  other  defendant  should 
be  added,  it  might  be  done  after  verdict 
and  judgment    below,   and  this   Court 
would  consider  it  as  done.  Irish  v.  Scovii, 

vi.  55 

20.  A  plea  of  alien  enemy,  must  set  forth 
that  the  plaintiff  is  himself  an  enemy,  or 
adhering  to  the  enemy,  or  what  is  equi- 
valent to  this;  but  it  need  not  aver  that 
he  is  residing  in  the  country  of  the  ene- 
my.    Russel  v.  Skipwith,  vi.241 

21.  In  an  action  of  debt  or  on  the  case 
against  an  executor  for  a  debt  due  from 
the  testator,  the  plea  of  non  estfactum  or 
non  asmmpsit  is  an  admission  of  a  will  of 
which  the  defendant  is  executor :  secus, 
where  the  action  is  for   a  demand  on 
which  the  testator  was  not  liable,  as  for 
a  legacy.  Hantz  v.  Sealy,  vi.  405 

22.  Although  the  act  of  21st  March  1806, 
authorizes  the  defendant  to  alter  his  plea 
or  defence  at  any  time  on  or  before  the 
trial,  yet  this  is  to  be  only  by  permission 
of  the  Court.  The  discretion  of  the  Court 
is  however  a  legal  discretion,  subject  to 
review  on  a  writ  of  error,  and  if  the  de- 
fendant   after    having  already  pleaded 
offers  to  plead  specially  other  pleas  con- 
taining matter  of  law  necessary  for  his 
defence,  it  is  error  to  refuse  it.    Toung  v. 
The  Commonwealth,  vi.  88 

PLEDGE. 
See  BAILMENT. 

POLICY. 

See  INSURANCE,  2.  5.  7-  18. 
SETT-OEF,  2,  3. 

POOR. 

See  SCHOOLMASTER. 


POSSESSION. 

See  ASSIGNMENT,  6,7. 

EVIDENCE,  60. 

POUNDAGE. 

1.  If  the  sheriff,  with  the  money  raised  by 
an  execution  upon  land,  pays  off  mort- 
gages or  judgments  which  had  a  lien 
prior  to  the  judgment  under  which  the 
sale  was  made,  he  is  entitled  to  pound- 
age upon  the  amount  so  paid,  though  it 
should  exceed  the  real  debt  in  the  exe- 
cution. Petry  v.  Beauvarlet,  i.  97 

2.  The  Sheriff  is  not  entitled  to  poundage 
upon  a  ca.  sa.  unless  he  receives  and 
pays  the  money.    Milne  v.  Davis,  ii.  137 

POWER. 

1.  If  a  power  to  sell  is  given  to  executors 
by  name,  for  the  purpose  of  paying  debts, 
they  take  it  ratione  officii,  and  it  survives. 
Lessee  of  Zebach  v.  Smith,  iii.  69 

2.  Where  there  is  a  naked  power  to  execu- 
tors to  sell,  and  they  renounce,  adminis- 
trators cum  testamento  annexo  have  not, 
either  at  common  law,  or  under  any  act 
of  assembly  prior  to  that  of  12th  of  March 
1800,  authority  to  sell,  although  the  ob- 
ject of  sale  be  the  payment  of  debts. 
Lessee  of  Moody  v.  Vandyke,  iv.  31 

3.  Where  several  persons  are  authorized  to 
do  a  private  act,  they  must  all  join  ;  but 
where  they  are  authorized  to  do  an  act 
of  a  public  nature,  which  requires  deli- 
beration, though  all  should  be  convened, 
a  majority  may  decide.    Baltimore  Turn- 
pike Case,  v.  481 

4.  Hence,  where  an  act  of  assembly  provid- 
ed, that  if  a  certain  turnpike  road  should 
be  laid  out  upon  any  land,  whereby  the 
owner  should  suffer  damage,  he  might 
apply  to  the  County  Court,  who  should 
appoint  six  disinterested  persons  to  view 
and  adjudge  the  amount  of  the  damage 
so  done,  which,  if  approved  by  the  Court, 
should  be  paid  by  the  Turnpike  Company, 
it  was  held,  that  if  the  whole   number 
viewed,  Jive  might  adjudge  the  damage. 
Baltimore  Turnpike  Case,  v.  481 

PRACTICE. 

See  REFEREES. 

1.  A   preference  must  be  asked  for  the 
Commonwealth  causes,  upon   the    first 
day  of  the  jury  period.  Common-wealth  v. 
Pascalis,  \-  37 

2.  The  court  will  not  permit  a  rule  of  refer- 
ence to  be  struck  off,  after  there  has  been 
a  meeting  of  the  referees,  and  the  parties 


GENERAL  INDEX. 


601 


have  proceeded  before  them  in  the  con- 
troversy; notwithstanding  since  the  meet- 
ing-, one  of  the  parties  is  dead,  and  his 
representatives  have  been  substituted. 
Jfuston  v  Dunwoody,  i.  42 

3.  A  cause  in  which  the  Commonwealth  is 
interested,  is  not  entitled  to  a  preference, 
unless  it  is  asked  by  the  Commonwealth. 
Turnbull  v.  The  Common-wealth,  \.  45 

4.  A  rule  to  shew  cause  of  action  is  well 
served    upon    the    plaintiffs    attorney. 
Hutcheson  v.  Johnson,  i  59 

5.  The  affidavit  of  a  party  may  lay  a  ground 
for  a  rule  to  shew  cause,  but  it  cannot  be 
heard  upon  the  argument  on  the  rule 
Hoar  v.  Mulvey,  i.  145 

6.  If  to  debt  on  a  bond  the  defendant  pleads 
payment,  and  attempts  to  defeat  the  bond 
by  giving  evidence  of  fraud,  want  of  con- 
sideration, &c.  but  fails,   and  makes  no 
set-off,  judgment  shall  be  entered  for  the 
penalty,  with  leave  to  take  out  execution 
in  the  first  instance,  for  as  much  as  was 
due  at  the  commencement  of  the  action. 
For  payments  accruing  afterwards,  the 
plaintiff  must  move  the  court  for  execu- 
tion, when  the  defendant  may  make  any 
defence  other  than  that  which  has  been 
tried,  and  arising  subsequent  to  the  suit. 
Sparks  v.  Garrigues,  i.  152 

7-  It  is  not  necessary  to  entitle  a  party  to  a 
special  jury,  that  the  attorney  should 
certify  that  it  is  not  intended  for  delay. 
Lessee  of  Neffv.  J\'eff,  i.  350 

8.  If  the  judgment  of  a  justice  of  the  peace 
is    affirmed  in  the    Common   Pleas,  for 
want  of  exceptions  in  time  agreeably  to 
the    rules   of  that    court,  the  Supreme 
Court  will  not  hear  objections  to  it.  Du- 
bos(/\.  Tfie  Guardians  of  t lie  Poor,      i.  415 

9.  Judgment  may  be  arrested  for  an  error 
on  the  face  of  the  record,  although  it  was 
not  assigned  at  the  time  of  filing  the  mo- 
tion, or  of  entering  an  appeal.  Grosser  v. 
Eckart,  i .  575 

10.  The  court  will   hear  more   than  two 
counsel  of  aside,  where  there  arc  other 
parties  than  those  on  the  record,   wh 
have  agreed  to  be  bound  by  the  court's 
decision.   Frazer  \  Tunis,  i.255 

11.  The  rule  of  court  requiring  ten  days' 
notice  in  writing  before  the  next  term, 
of  an  intended  motion  for  a  new  trial  in  a 
cause  tried  at  nisi  prius,  applies  to  causes 
tried  at  nisi  pr ins  in  the  county  of  Phila 
delphia.  Henry  v.  Kennedy,  i.  458 

12.  A  variance  between  the  writ  and  count 
is  immaterial  by  the  practice  in  Pennsyl- 
vania   Jennings  v    Cox,  \.  588 

13.  When  the  words  "  and  issue"  are  in- 

VOL.  VI. 


serted  upon  the  docket  after  the  entry 
of  an  issuable  plea,  it  is  considered  as  a 
direction  to  the  clerk  to  join  the  issue, 
and  the  omission  of  it  is  treated,  after 
error  brought,  as  a  clerical  mistake.  But 
if  the  issue  is  not  formally  joined,  and 
the  memorandum  is  not  made  upou  the 
docket,  t!ie  judgment  is  erroneous. 
Brovin  v.  Burnett,  ii-  33 

14.  Where  the  docket  entries  set  forth,  that 
"  defendant  craves  over  of  writ  and  bond, 
"  and  special  impar  lance"   and  then  that 
"  defendant  pleads  payment  with  leave  He." 
the  bond  is  considered  by  the  practice  in 
Pennsylvania,  as  having    been  placed  on 
the  record.  Douglas  v.  Beam,  ii.  76 

15.  Rule  55  of  the  Supreme  Court  of  15th 
April  1781  does  not  give  a  priority  to  a 
certiorai  i  to  a  justice,  unless  it  is  claim- 
ed before  the  arrangement  of  the  argu- 
ment list ;  and  indeed  it  seems  that  the 
rule  is  obsolete.  Smith  v.  Diehl,     ii.  145 

16.  A  general  appearance  entered  on  the 
docket  by  an  attorney,  opposite  to  the 
names  of  two  defendants,  is  a  good  ap- 
pearance for  both,  although  one  has  not 
been  summoned.  Scott  v.  Israel,      ii.  145 

17.  The  plea  of  "  layman  and  unlettered 
&c."  is   not    necessary  in  Pennsylvania- 
Fraud  either  in  the  execution  or  the  con- 
sideration of  a  bond,  may  be  given  in  evi- 
dence under  the  plea  of  payment.  Baring 
v.  Shippen,  ii.  154 

18.  The  Supreme  Court  does  not  hear  evi- 
dence upon  a  certiorari   to  the  Quarter 
Sessions  to  remove  proceedings  in  a  road 
cause.    Case  of  tlie  Schuylktll  Falls  Road, 

ii.  250 

19.  A  scire  facias  ad  ait diendum  errors s  is  not 
in  use   in  Pennsylvania.    The  plaintiff  in 
error  proceeds  by  a  rule  on  the  defendant 
to  plead.  Commonwea.th  v.  Emery,  ii  257 

20.  A  certiorari  by  the  defendant  to  remove 
the  proceedings  in  an    inquisition  under 
a  turnpike  act  does  not  require  a  special 
allocatur.   Commonwealth  \.  Willow  Grove 
Turnpike,  it.  257 

21.  The  plaintiff  may  proceed  against  an 
executor  by  capias  to  compel  an  appear- 
ance, but  if  he  elects  to  proceed  by  sum- 
mons, then  in  order  to  entitle  himself  to 
judgment  by  nil  dicit,  !u-  must  pu:  sue  the 
act  of  20th  '.March  1724-5,  as  if  the  suit 
were  against  a  freeholder.  Fitzsimons  v. 
Salomon,  ii.  4J6 

22.  A  judgment  after  one  "nihil"  upon  a 
scire  facias,  is  irregular ;  and  may  be  set 
aside,   or   reversed  on  error.    Lessee  of 
Heister  v.  Partner,  ii.  40 

23.  If  bail  in  error  is  not  perfected  within 

4G 


602 


GENERAL  INDEX. 


ten  days  after  it  is  excepted  to  the  de 
fendant  in  error  is  entitled  to  a  non  pros. 
Taggart  v.  Cooper,  iii.  34 

24.  The  short  entry  of  "  not  guilty  with 
"leave  to  justify,"  by  two  or  more   de- 
fendants, is  a  several  justification.  Kirlin 
v.  Seacock,  iii.  215 

25.  A  rule  to  try  or  non  pros,  is  in  force  from 
the  time  it  is  taken,  until  the  cause  is 
concluded,   notwithstanding    the  cause 
may   have  been  once  tried   during  the 
existence  of  the  rule,  or  continued  at  the 
instance  of  the  defendant.    Tliurston  v. 
Murray,  iii.  413 

26.  Under  the  general  power  of  the  Com- 
mon Pleas  to  r-gulate  its  practice,  it  may 
require  an  affidavit  of  defence.  Vanatta 
v.  Anderson,  iii.  417 

27.  A  defendant  cannot  upon  the  eve  of 
trial  withdraw   a  negative  plea,  to  gain 
the  conclusion  to  the  jury  by  means  of  an 
affirmative  plea  that  is  left.  Waggoner  v. 
Line,  iii.  589 

28.  The  rule  of  excluding  all  but  rebutting 
testimony  after  thr  party  has  once  closed 
his  evidence,  is  not  to  he  so  closely  ad- 
hered to,  is  to  do  injustice.   Richardson 
v.  The  Lessee  of  Stewart,  iv.  198 

29.  An  affidavit  that  Jl  was  a  material  wit- 
ness, that  he  had   left  the  country  and 
was  expected  to  return  before  the  next 
term,  and  that  the  party  did  not  know  of 
his  going  until  three  or  four  days  before 
he  went,  and  did  not  advert  to  the  cir- 

.  cumstance  of  his  being  a  material  wit- 
ness, is  not  a  sufficient  ground  for  a  con- 
tinuance Davidson  v.  Brovm,  iv.  243 

30.  Where  there  is  a  motion  for  a  new  trial 
by  the    defendant,  and  also  a  point  re- 
served, in  the  same  cause,  the  defend- 
ant's counsel  must  begin   and  conclude 
the  motion,  and  the  plaintiffs  the  point 
reserved.  Lacombe  v.  Wain,         iv.  300  n. 

31.  Proceedings  on  bail  bond  suit  staid  at 
the  third  term  of  the   original  action, 
upon  paying  costs,  entering  special  bail, 
and  giving  the  plaintiff'  a  judgment  in 
the  original.  Priestman  v.  A'eyver,  iv.  344 

32.  The  court  will  not  interpose  summarily 
to  stay  an  execution,  unless  tt,e  defend*- 
ant's  case  is  made  out  entirely  to  their 
satisfaction.  If  it  is  doubtful,  he  must  re- 
sort to  his  actioii.  Pearce  v.  Affleck,  iv.344 

33.  Where  a  point  is  reserved  at  the  trial, 
the  rule  which  requires  ten  days'  previ 
ous  notice  of  a  motion  for  a  new  trial  is 
dispensed  with.    Reinouldt  v.  Aublai, 

iv.378 

34.  Where  there  has  been  an  award  of 
arbitrators  finding  that  the  plaintiff  has 


no  cause  of  action,  an  affidavit  of  defence 
is  not  requisite.  Gregg  v.  Meeker,  iv.  428 

35.  A  general  return  of  "  levied  on  goods 
"  as  per  inventory,"  does  not,   by  the 
practice  in  Pennsylvania,  discharge  the 
defendant,  and  make  the  sheiifF  liable 
for  the  whole  debt.  He  is  liable  only  for 
the  value  of  the  goods  upon  which  a  levy 
was  made,  or  might  have  been  made  ; 
and  on  his  paying  the  net  sales,  an  alias 
goes  for  the  residue,  without  application 
to  the  Court.  Little  v.  Delancey,      v.  266 

36.  Motion  for  rule  to  shew  cause  why  a 
foreign   attachment   should  not  be  dis- 
solved, is  in  time  at  December  term,  if 
the  attachment  was  returnable  at  July  ,- 
that  term   consisting  of    but  one    day. 
Kearney  v.  M'Cullough,  v.  389 

37.  The  rule  for  affidavits  of  defence,  does 
not  apply  to  a  case  in  which  the  defend- 
ant is  an  infant.  Read  v.  Bush,        v.  455 

PRJECIPE. 

The  prtecipe  for  the  original  writ  is  a  part 
of  the  record,  and  should  regularly  be 
sent  up  with  the  process  and  pleadings 
upon  a  writ  of  error.  Fitzsimonsv.  Salo- 
mon, ii.  436 

PRESUMPTION. 

Although  presumptions  may  be  made  in 
favour  of  what  does  not  appear,  they  can 
never  be  made  against  what  does  appear. 
Messinger  v.  Kintner,  iv.  97 

PRINCIPAL  AND  SURETY. 
See  NEW  TRIAL,  11. 

1.  Where  the  principal  assigns  a  fund  to 
pay  a  creditor,  whom   the  surety  after- 
wards pays,  the  surety  is  entitled  to  the 
benefit  of  the  fund,  and  if  converted  into 
money,   may  recover  it  in  an  action  for 
money  had  and  received.  JMiller  v.  Ord, 

ii.  382 

2.  If  the  obligee  undertakes  to  discharge 
the  principal,  or  in  any  considerable  de- 
gree to  lessen  his  responsibility,  without 
consulting  the  surety,  the  surety  is  dis- 
charged.   But  the  mere  acceptance  of  a 
common  appearance  in  a  suit  by  the  ob- 
ligee  against   the     principal,  in  conse- 
quence of  wVich  the  latter  executed  an 
assignment  to  secure  part  of  the  debt, 
has  no  effect  upon  the  obligation  of  the 
surety,  although  it  furnished  the  princi- 
pal an   opportunity  to  leave   the  state. 
Commissioners  of  Berks  v.  Ross,      iii.  520 

3.  If  a  surety  makes  an  agreement  with  one 
of  two  persons    for  whom  he  is  bound, 
that  if  he  the  principal  will  pay  one  half 


GENERAL  INDEX. 


603 


the  debt,  he  the  surety  will  pay  the  other 
half  for  the  other  principal,  and  the  one 
half  is  paid  by  the  principal  according  to 
the  agreement,  the  surety  cannot  main- 
tain an  action  against  both  principals  to 
recover  the  part  that  he  has  paid.  JJun- 
can  v.  Keiffer,  iii.  126 

4.  An  omission  on  the  part  of  the  account- 
ing1 officers  of  the  Commonwealth,  for  a 
year  and  upwards,  to  compel  the  protho- 
notary  of  the  Common  Pleas  to  settle  his 
account  of  fees,  does  not  discharge  the 
sureties  in  the  official  bond  ot  the  protho 
notary  ;  although  the  officers  are  autho- 
rized to  compel  an  account  at  the  end  of 
each  year,  and  to  enforce  payment  by 
execution.  Qiuere,  what  would  have  been 
the  law  if  the  officers  had  been  requested 
to  proceed  by  the  sureties.  The  Common- 
wealth v.  Wolbert,  vi.  292 

PRIORITY. 

1.  A  debt  due  to  the  United  States  by  a  de- 
ceased revenue  officer,  is  entitled  to  pri- 
ority of  payment  from  his  administrators 
under  the  law  of  this  Commonwealth, 
whether  the  debt  arose  before  or  after 
the  act  of  Congress  of  3d  March  1797. 
The  Commonwealth  v.  Lewis,  vi.  266 

2.  Congress  have  a  constitutional  right  to 
claim  a  preference  out  of  the  estate  of  a 
public  debtor,  for  debts  due  to  the  United 
States;  and  by  the  act  of  3d  Mar. 1797  they 
have  constitutionally  claimed  it  as  against 
living  debtors  for  all  debts  contracted 
thereafter,  and  as  against  deceased  debt- 
ors whether  contracted  before  or  after 
that  law.  ibid. 


PRISONERS. 

Persons  sentenced  to  imprisonment,  and  to 
pay  a  fine  not  more  than  51. ,  with  costs, 
are  entitled  to  a  discharge  from  impri- 
sonment, b  ith  as  to  fine  and  costs,  after 
having  remained  in  confinement  for  the 
fine  thirty  days  beyond  the  term  adjudg- 
ed for  their  imprisonment.  But  neither 
fine  nor  costs  are  remitted  thereby-  If 
the  defendant  has  property,  it  is  liable. 
The  Commonwealth  v.  Long,  v.  489 

PRIVILEGE. 

A  party  while  attending  an  appeal  from  the 
court  of  another  county  to  the  Supreme 
Court,  is  privileged  from  the  service  of  a 
summons.  Miles  v.  M'Ctiliough,  i.  77 

PRIZE. 

See  JURISDICTION*,  3,  4,  5. 


PRIZE  COURT. 
See  JURISDICTION,  3,  4,  5. 


PROBATE. 

1.  An  ex  parte  probate  of  a  will,  taken  by 
the  register  at  the  instance  of  one  of  the 
parties  to  an  issue  then  pending  to  try 
the  validity  of  another  will  by  the  same 
testator,  is  not  valid.  Hantz  v.  Hull,  ii.  511 

2.  The  probate  of  a  will,  so  long  as  it  re- 
mains unrepealed,  is    conclusive  as   to 
personal  property,  but  only  primafacie 
as  to  reality.    Coates  v.  Hughes,      hi.  498 

PROCESS. 

1.  Process  must  go  in  the  name  of  "  the 
"  Commonwealth  of  Pennsylvania  „•"  but 
it  is  immaterial  in  what  part  of  the  pre- 
cept the  Commonwealth  is  introduced, so 
th.it  the  command  is  given  in  its  name. 
White  v.  Tlie  Commonwealth,  vi.  179 

2.  In  a  precept  to  the  sheriffto  summon  the 
grand  and  petit  jury,  it  is   sufficient  to 
command  him  to  cuuse  to  come  before 
the  judges  24  good  and  lawful  men,  with- 
out commanding  him  in  what   manner 
they  are  to  be  drawn  or  selected.       ibid. 

PROMISE. 

See  IMPLIED  PROMISE. 

PROMISSORY  NOTE. 

If  the  indorser  of  a  promissory  note,  proves 
that  it  was  put  into  circulation  by  the 
drawer  fraudulently,  he  may  call  upon 
the  holder  to  shew  what  considera- 
tion he  gave  for  it,  and  how  it  came 
into  his  hands.  And  the  indorser  is  enti- 
tled to  give  such  proof,  in  order  to  re- 
quire such  explanation  from  the  holder. 
Holmes  v.  Karspcr,  v.  469 

PROSECUTION. 

An  act  of  assembly  directs  that  "  from  and 
"  after  the  passing  of  the  act  no  person 
"  shall  be  subject  to  prosecution  by  in- 
"  dictment,"  for  a  particular  oftcnce. 
Held  that  it  puts  an  end  to  a  prosecution 
commenced  and  carried  to  conviction  be- 
fore the  passing  of  the  act,  but  in  which 
no  judgment  ha-1  been  pronounced.  The 
Commonwealth  v.  Duane,  i.  601 

PROSECUTOR. 
See  COSTS,  13. 


604 


GENERAL  INDEX. 


PROTEST. 

See  EVIDENCE,  1.  38. 

The  protest  of  a  master  of  a  vessel  is  evi- 
dence in  an  action  of  replevin  by  the 
owner  of  a  cargo,  to  recover  it  from 
the  vendee  of  the  captor.  Chtriot  v.  Fous- 
sat,  iii.  227 

PROTHONOTARY. 

1.  A  prothonotary  cannot  maintain  an  ac- 
tion for  his  fees,  until  the  cause  in  which 
they  are  due  is  terminated  ;  but  if  he 
cannot  recover  them  from  the  defendant 
then,  it   seems  that  he  may   from   the 
plaintiff.     Lyon  \.  M'Manus,  iv.  167 

2.  A  prothonotary's  certificate  of  the  ac- 
knowledgment in  open  court  of  a  deed 
to  himself  by  the  sheriff,  and  his  entries 
of  the  acknowledgment  upon  record,  are 
evidence  in  his   own   cause.     Lessee  of 
Ricketts  v.  Henderson,  vi.  133 

3.  The  bonds  of  the  protbonotaries  though 
not  required  by  law,  are  binding  on  them 
and  their  sureties.  Commonwealth  v.  Wot- 
bert,  vi.  292 

PURCHASER. 

See  SHERIFF,  8,  9. 

1.  A  judgment  creditor  is  not  a  purchaser 
or  mortgagee  within  the  meaning  of  the 
recording  act  of  1775;  but  a  purchaser  at 
sheriff's   sale   under  that  judgment  is. 
Lessee  of  Heist er  v.  Fortner,  ii.  40 

2.  A  purchaser  at  sheriff's  sale  to  whom  a 
deed  has  been  made,  will  hold  the  land, 
notwithstanding  the  judgment  be   set 
aside   for  irregularity,    or  reversed  on 
error.  ii.  40 

3.  Where  a  levy  is  set  aside,  and  a  vend, 
exp.  is  issued  without  a  fresh  levy,  a  sale 
under  it  is  void,  and  the  purchaser  de- 
rives no  title.  The  ninth  section  of  the  act 
of  1705,  protects  a  purchaser  in  the  event 
of   a  reversal   of  the  judgment  under 
which  the  sale  was  made,  but  not  where 
the  sale  was  made  under  void  process. 
Murd  v.  The  Lessee  of  Dansdale,         ii.  80 

4.  A  purchaser  is  not  bound  to  accept  a 
deed  of  bargain  and  sale,  in  which  a 
blank  is  left  for  the  consideration  money; 
notwithstanding  the  grantors,  after  ac- 
knowledgment of  the  deed  by  them.have 
authorized  their  a^ent  to  fill  the  blank. 
Moore  v.  The  Lessee  ofJBickham,         iv.  1 

5.  It  behoves  the  purchaser  at  a  sale  under 
a  decree  of  the  Orphans'  Court,  to  see 
that  the  proceedings  are  so  far  regular 
as  to  authorize  the  sale.  Lessee  of  Larri- 
mer  v.  Iriain,  iv.  104 

6.  The  assignment  of  a  warrant  and  sur- 


vey is  within  the  recording  acts,  and 
therefore  if  not  recorded  within  six 
months,  is  void  against  a  subsequent  bona 
fide  purchaser  without  notice.  Lessee  of 
Carrey  v.  Caxton,  iv.  140 

7.  A  purchaser  at  sheriff's  sale,  cannot 
give  parol  evidence  of  a  deed  by  which 
the  title  was  conveyed  to  the  defendant 
in  the  execution,  unless  he  lays  the 
usual  ground  for  secondary  evidence.  He 
stands  as  to  proof  of  title,  on  the  same 
footing  as  other  purchasers.  Little  v.  The 
Lessee  of  Delancey,  _  v.  266 

PURCHASE  MONEY. 

1.  If  the  quantity  of  land  falls  short,  where 
the  conveyance  is  for  a  gross  sum,  and 
by  courses  and  distances  which  truly  de- 
scribe the  premises,    there  can    be   no 
deduction  from  the  purchase  money,  un- 
less there  has  been  fraud. 

Quaere  •  how  the  law  is  where  a  tract 
is  sold  at  so  much  per  acre,  and  there  is 
a  deficiency.  Smith  v.  Evans,  vi.  102 

2.  The  seller  of  land,  although  he  conveys 
it,  retains  an  equitable  lien  against  the 
purchaser,  and  all  claiming  under  him, 
with  notice  that  the  purchase  money  is 
unpaid. 

Hence,  if  by  the  deed  of  conveyance,  or 
other  instrument  transferring  the  title,  it 
appears  that  the  time  for  paying  a  part 
of  the  purchase  money,  has  not  yet  ar- 
rived, a  purchaser  under  that  title  at 
sheriff's  sale  or  otherwise  is  answerable 
for  all  that  by  the  terms  of  the  instrument 
was  not  due  at  the  date  of  the  purchase. 
But  if  by  a  distinct  instrument  between 
the  original  parties,  the  land  is  pledged 
for  the  whole  purchase  money  due  as 
well  as  not  due,  a  purchaser  is  not 
bound  by  this  unless  duly  recorded.  Irvine 
v.  Campbell,  vi.  118 

QUARTER  SESSIONS. 
See  JURISDICTION,  8. 
ROAD,  1.  3. 

1.  The  Quarter  Sessions  have  power  to  or- 
der a  re-review  of  a  road,  although  the 
act  of  Assembly  does  not  expressly  au- 
thorize it.   Case  of  Schuylkill  Falls  Road, 

ii.  250 

2.  The  Quarter  Sessions  is  not  an  inferior 
jurisdiction,    whose  authority  must  ap- 
pear by  these  proceedings  to  have  been 
strictly  pursued.  The  law  will  not  intend 
that  they  have  committed  an  error^  when 
acting  on  a  subject  clearly  within  their 
jurisdiction  ;  but  will  presume  in  cases 
which  admit  of  presumption,  ornnia  esse- 
rite  acta.  ii.  255 

3.  The  courts  of  Quarter  Sessions  of  this 


GENERAL  INDEX. 


605 


state,  have  jurisdiction  of  all  criminal 
offences  which  were  not  capital  at  the 
passing  of  the  act  of  22d  of  May  1722. 
Their  jurisdiction  remains  unchanged, 
although  since  that  act,  several  offences 
which  were  then  felonies  of  death  have 
ceased  to  be  so  They  accordingly  have 
jurisdiction  of  perjury.  Kramer  v.  The 
Commonwealth,  iii.  577 

4.  Those  rules   of  construction  which  arc 
applied  to  the  proceedings  of   persons 
having  a  special  anil  limited  jurisdiction, 
do  not  apply  to  the  proceedings  of  the 
Quarter  Sessions.    Case  of  Spear's  road, 

iv.  174 

5.  The  time  during  which  the  reputed  fa- 
ther of  a  bastard  child  shall  be  ordered  to 
maintain  it,  is  entirely  within  the  dis<-re- 
tion  of  the  Sessions,  who  are  not  bound 
by  any  practice  however  uniform,   that 
may  have  been  adopted  by  themselves  or 
other  courts  upon  the  subject.  Addis  v. 
The  Commonwealth,  iv.  541 

6.  On  appeals  to  the  Sessions  from  orders 
of  removal  by  two  justices,  that  court  is 
to  decide  according  to  the  merits,  with- 
out regard  to    defects    in  the   orders. 
Reading  v.  Cumree,  v.  81 

7.  No  order  for  opening  a  road  having  been 
taken  out  below,  proceedings  sent  down 
to  the  Quarter  Sessions,  to  give  them  an 
opportunity  of  completing  their  order  by 
fixing  the  breadth  of  the  road.   Shamokin 
Road,  vi.  36 


QUO  WARRANTO. 

1.  An  act  of  assembly  vests  the  appoint- 
ment of  inspectors  of  the  prison  in  the 
mayor  and  two  aldermen  of  the  city,  and 
two  justices  of  the  county  of  Philadelphia, 
and   directs  it  to  be  exercised  on  a  cer- 
tain day.  An  appointment  made  in  a  clan- 
destine manner,   after  a  refusal   by  the 
mayor  to  make  known  to  certain  alder- 
men and  justices  the  hour  and  place  at 
which  such  appointment  would  be  made, 
is  not  such  an  exercise  of  the  mayor's 
discretion  as  the  law  will  warrant,  and 
the  court  will  give  leave  to  file  an  infor- 
mation in  the  nature   of  a  quo  ivarranto 
against  the  inspectors  so  appointed.   The 
Commonwealth  v.  Douglass,  i.  77 

2.  The  Supreme  Court  has  no  authority  to 
try  an   issue  in  fact   in   any  part  of  the 
state,  except  the  county  of  Philadelphia  ,- 
and  therefore  it  cannot  in  the  western 
district   entertain  a  motion  for  leave   to 
file  an  information  in  nature  of  a  quo  iuar- 
ranto,  because  an  issue  in  fact  may  arise 
out  of  it.  Commonwealth  v.  Smith,  iv.  117 


RECEIPT. 

See  SURVEYOR,  3. 

RECITAL. 

1.  A  deed  containing  a  recital  of  another 
deed,  is  evidence  of  the  recited  deed, 
against  the    grantor,    and    all    persons 
claiming  by  title  derived  from  him  sub- 
sequently; but  not  against  one  who  claims 
by  title  prior  to  the  deed  which  contains 
the  recitals,  nor  against  a  stranger.  Pen- 
rose  v.  Griffith,  iv.  231 

2.  In  case  of  an  ancient  deed,  of  the  loss  of 
which  some   evidence  has   been  jfiven, 
where  the  possession  has  r.ot  been  con- 
trary  to  the  deed,  and  where  the    sub- 
scribing witn?  sses  have  been  long  dead, 
a  recital  in  another  deed  is  evidence  of 
the   lost  deed,  even   against   strangers, 
and  persons  claiming  paramount    Gar- 
viood  v.  Dennis,  iv.  314 

3.  A  recital  in  a  deed,  that  certain  land  had 
become   the  property   of  D,   is   evidence 
against  the  grantor,  (though  not  conclu- 
sive) that  D  had  a  fee  simple  in  the  land; 
and  if  the  deed  further  recites,  that  D's 
estate  had  been  divested  by  an  entry  of 
the  grantor  for  breach  of  condition,  one 
who  claims  under  D  (but  not  under  the 
deed)  is  net  estopped  from  denying  this 
recital,  by  having  availed  himself  of  the 
first  as  evidence  of  D's  estate.  Stoever  v. 
Lessee  of  Whitman,  vi.  416 

RECOGNISANCE. 

The  short  minutes  of  a  recognisance  taken 
by  a  magistrate,  and  returned  by  him 
into  court,  where  the  recognisance  was 
forfeited,  may  be  given  in  evidence  to 
maintain  an  action  on  the  recognisance, 
provided  they  substantially  shew  the 
amount  and  condition,  and  that  the  party 
was  bound  to  the  Commonwealth.  The 
Commonwealth  v.  Emery,  ii.  431 

RECORD. 

An  indorsement  on  the  original  writ  by  the 
deputy  sheriff',  of  the  day  on  which  he 
made  the  arrest,  is  no  part  of  the  record. 
Dolan  v.  Briggs,  iv.  496 


RECORDING  ACT. 
See  NOTICE,  1,  2.4. 

1.  The  assignment  or  bargain  and  sale  of  a 
warrant  and  survey,  is  within  the  record- 
ing act  of  18th  of  March  1775.  Lessee  of 
Correy  v  Caxton,  iv.  140 

2.  An  office  copy  of  a  deed  proved  by  one 


606 


GENERAL  INDEX. 


subscribing  witness  prior  to  the  act  of 
1775  is  not  evidence.  To  entitle  a  deed 
to  registry  under  the  ;*ct  of  1715,  it  must 
be  proved  by  two  witnesses  who  were 
present  at  its  execution.  Vickroy  v. 
MKnight,  iv.  204 

3.  Before  the  recording  act  of  1775,  no 
man  was  obliged  to  record  his  deeds. 
The  purchaser  was  to  look  to  the  title 
at  his  peril ;  and  notwithstanding  he  ob- 
tained a  patent  from  the  Commonwealth, 
before  notice  that  the  warrant  and  sur- 
vey, or  a  part  of  it,  had  been  conveyed 
to  a  third  person,  yet  this  did  not  avoid 
the  third  person's  title.  Lessee  ofMaclay 
v.  Work,  v.  154 

REFEREES. 
See  PRACTICE,  2.    COSTS,  2. 

1.  A  report  of  referees  may  without  con- 
sent  of  parties  be  sent  back  •  o  the  same 
referees,  for  the  purpose  of  correcting 
informality.  Lessee  of  Snyder  v.  Hoffman, 

i.  43 

2.  Exceptions  to  a  report  of  referees  must 
point  out  some  plain  mistake  in  fact  or  in 
law,  otherwise  the  court  will  not  inves- 
tigate the  merits  of  the  report.    Lower 
Dublin  School  v.  Paul,  i.  59 

3.  Part  of  a  report  of  referees  may  be  con- 
firmed and  the  residue  set  aside.    But 
the  court  cannot  strike  out  a  part.  Wog~ 
lam  v.  Burnes,  i.  109 

4.  To  entitle  a  party  to  demand  of  referees 
an  allowance  of  time  to  produce  testimo- 
ny, he  must  shew  them  what  it  is,  why 
he  is  not  able  then  to  produce  it,   and- 
that  he  expects  to  obtain  it  in  a  reason- 
able time.  Latimer  v.  Ridge,  \.  458 

5.  If  the  oath  directed  by  the  act  of  21st 
March  1806,  to  be  administered  to  re- 
ferees, is  dispensed  with  by  the  parties, 
there  is  no  necessity  that  their  award 
should  be  under  seal.  Graham  v.  Hamilton, 

i.461 

3.  If  referees  themselves  certify  to  the 
court,  that  they  have  committed  a  mis- 
take in  their  award,  the  court  will  in- 
quire into  it,  although  no  exception  upon 
this  ground  has  been  filed  within  the 
four  days  after  report  into  office  ;  but  al- 
though exceptions  stating  other  mistakes 
of  the  referees,  as  well  as  that  admitted, 
have  been  filed  after  the  four  days,  and 
before  the  next  term,  yet  the  whole  mat- 
ter is  not  opened  by  the  certificate  of  the 

'  referees,  but  the  party  is  confined  to  the 
exception  stating  the  mistake  which  they 
have  certified.  Davis  v.  Canal  Company, 

iv.  296 


7.  A  report  of  referees  may  be  in  part  con- 
firmed, and  as  to  the  residue  held  under 
advisement  to  give  the  plaintiff' an  oppor- 
tunity of  producing  further  proof.  Dennis 
v.  Barber,  iv.  484 

8.  A  rule  of  reference  directing  the  report 
to  be  made  to  the  next  court,  or  next 
term,  makes   it  incumbent  on   the  re- 
ferees  to  make  report  to  the  next  term 
after  the  submission;  but  if  the  report  is 
not  then  made,  it  may  be  made  to  any 
succeed  in  g  term,   and   to  an  adjourned 
court  as  part  of  the  term.  Shaw.  Pearce, 

iv.  485 

9.  If  a  report  is  set  aside  for  mere  informa- 
lity, the  court  may  send  it  back  to  the 
referees  without  consent  of  parties.    But 
if  it  is  set  aside  in  consequence  of  a  ma- 
terial error  in  the  manner  of  conducting 
the  business,   consent  of  both  parties  is 
essential  to  induce  the  court  to  send  it 
back.  Quaere  whether  the   court  would 
not  recommit  it,  if  the  referees  request- 
ed it.  Shaw  v.  Pearce,  iv.  485 

10.  An  agreement  by  rule  of  court  to  sub- 
mit all  matters  in  variance  to  A,  B,  and 
C,  before  whom  the  parties  were  to  ap- 
pear without  counsel,  to  "waive  all  objec- 
tions arising  upon  legal  grounds,  and  to  let 
the  referees  determine  all  matters  justly, 
honestly,  and  equitably,  the  report  of  a 
majority  of  them  to  be  final  and  conclusive, 
does  not  preclude  either  party  from  fil- 
ing exceptions  to  the  report.  Mussina  v. 
Henzog,  v.  387 

11.  No  exception  to  a  report  of  referees, 
which  does  not  appear  wholly  upon  the 
face  of  the  report,  can  be  taken  after  the 
four  days  have  expired.    Shoemaker  v. 
Smith,  ii.  239 

12.  The  discovery  of  material  evidence 
after  a  report  made,  which  by  using  due 
diligence  the  party  might  have  discover- 
ed before,  is  no  ground  for  setting  aside 
a  report.  Aubel  v.  Ealer,  ii.  582  note 

13-  Referees  under  the  act  of  1705  cannot 
award  costs  of  suit  in  the  Common  Pleas, 
upon  a  sum,  which  by  the  laws  giving 
jurisdiction  to  justices  of  the  peace,  will 
not  carry  costs,  unless  there  is  an  agree- 
ment in  the  rule  that  they  shall  have 
power  over  the  costs,  or  the  plaintiff'  had 
made  an  affidavit  before  the  suit,  that  he 
believed  the  debt  was  beyond  the  sum 
within  a  magistrate's  jurisdiction.  Guier 
v.  M'Fatlon,  ii-  387 

14.  Upon  a  report  of  referees  finding  a  sum 
due  by  the  plaintiff  to  the  defendant,  the 
latter  cannot  enter  judgment  to  recover 
the  sum,  and  issue  execution.  His  reme- 
dy is  by  scire  facias,  or  perhaps  by  at- 
tachment. Blackburn  v.  Markle,  vi.  174 


GENERAL  INDEX. 


607 


REGISTRY. 

See  RECORDING  ACT,  1,  2,  3. 

1.  The  registry  of  a  negro  child  under  the 
4th  section  of  the  act  of  29lh  of  March 
1788,  may  be  explained  by  purol  evidence, 
if  it  contains  t>  mistake  apparent  upon  the 
face  of  it.  Commonwealth  v.  BUuiie,  iv.  18f> 

2.  Entry  on  the  26th  of  June  1807  of  the 
name,  &c.  of  a  negro  child,  bom  on  the 
2d  of  January  1808  Registry  not  void,  but 
parol  evidence  admitted  to  shew  that  the 
child  was  born  on  the  2d  January  1807. 

ibid. 

REGULATION  OF  LOTS. 

The  regulation  of  a  lot  by  regulators  under 
the  act  of  9th  March  *1771,  from  which 
no  appeal  is  entered  to  the  next  Common 
Pleas,  is  conclusive  as  to  the  foundations 
and  party  walls  of  buildings  erected  con- 
formably thereto,  but  not  so  as  to  the 
lines  of  the  lot  on  which  there  are  no 
buildings.  Godshall  v.  Mariam,  i-  352 

RELATION. 

1.  A  survey  under  a  renewed  warrant  is- 
sued from  the  land  office  of  Maryland  in 
1762,  it  the  land  is  the  same  called  lor 
by  a  warrant  before  4th  July  1760,  relates 
to  tlie  time  of  the  01  iginal  warrant.  Lessee 
of  Ross  v.  Cutthall,  i.  399 

2.  An  assignment  to  a  trustee  for  the  bene- 
fit of  all  the  creditors  of  the  assignor,  not 
made  known  to  the  trustee   until   four 
days  after  its  execution,  when  he   ac- 
cepts, takes  effect  from  its  date.     The 
acceptance  of  the  trustee  is  presumed 
until  his  refusal  appeal  s .  Wilt  v.  Franklin, 

i.  502 

RELEASE. 
See  ASSIGNMENT,  4,  5. 
A  release  of  a  partnership  debt  by  one  of 
two  joint  partners,  bars  an  action  against 
the  debtor,  although  the  releasor  had  no 
authority   to  discharge   more  than   his 
moiety.  Salmon  v.  Davis,  iv.  375 

RELINOJLJISHMENT. 
See  WARRANT  AND  SURVEY,  22. 

RENEWED  WARRANT. 
See  WARRANT  AND  SURVEY,  6. 


3, 


RENT. 

See  INTEREST,  5,  6,  7. 
,  There  must  be  an  union  of  the  land  and 
the  rent  La  the  same  person,  to  work  an 


extinguishment  of  the  rent.  A  vested 
right  to  enter  and  hold  the  land  until 
payment  of  the  rent,  is  not  sufficient. 
Phillips  v.  Bonsall,  ii.  138 

.  The  proprietor  of  a  ground  rent  in  fee, 
who  obtains  a  judgment  in  covenant  for 
the  arrears,  and  sells  the  land,  is  entitled 
to  be  paid  the  whole  of  the  rent  in  arrear 
out  of  the  proceeds,  in  preference  to 
older  i  uderments.  JBantleon  v.  Smith, 

ii.  147 

3.  Kent  carries  interest  from  the  time  it  is 
due,  unless  from  the  conduct  of  the4and- 
lord  it  may  be  inferred  that  he  means 
not  to  insist  on  it,  or  unless  he  acts  in  an 
oppressive  manner  by  demanding  more 
than  is  due,  where  the  tenant  is  willing 
to  do  justice,  or  there  are  other  equitable 
circumstances  making  the  charge  of  in- 
terest improper.  Obermyer  v.  Ntcliols, 

vi.  159 

REPLEVIN. 

Replevin  lies  against  the  sheriff's  vendee, 
to  recover  the  possession  of  chattels 
wrongfully  taken  in  execution  and  sold. 
Shearich  v.  Huber,  ri.  2 

REPORT  OF  REFEREES. 
See  REFEREES. 

RESCUE. 
See  INSURANCE,  13. 

RESERVED  POINT. 
See PR  ACT  ICE,  30.  33. 

RESPONDENTIA. 
See  INSURANCE,  3. 

RETAINER. 

Since  the  act  of  1794,  an  administrator  has 
no  right  to  retain  his  whole  debt  against 
creditors  in  equal  degree,  when  there  is 
a  deficiency  of  assets.  Ex  pane  Meason, 

T.  16f 

REVENUE  OFFICER. 
See  PRIORITY. 

RIVERS. 

The  common  law  doctrine,  that  fresh  water 
rivers  in  which  the  tide  does  not  ebb  and 
flow,  belong  to  the  owners  of  the  banks, 
has  never  been  applied  to  the  Susquehan- 
na,  and  other  large  rivers  in  Pennsylvania. 
Such  rivers  are  navigable,  although  there 
is  no  flow  and  reflow  of  the  tide,  and 


GENERAL  INDEX. 


they  belong  to  the  commonwealth.   Car- 
ton v.  Blazer  and  others,  ii.475 

ROADS. 

See  POWER,  4. 

QUARTER  SESSIONS,  7. 

1.  It  is  not  necessary  that  an  appointment 
of  viewers  to  lay  out  a  road,  should  state 
that  they  are  "  freeholders  and  inhabi- 
tants near   where  complaint  is  made 
"  for  want  of  a  road,"  although  the  act  of 
assembly  requires  that  they  should  be  so. 
The  Supreme  Court  will  presume  that 
the  Quarter  Sessions  have  made  the  ap- 
pointment  according  to  law.     Case  of 
SchuylkiU  Fails  Road,  ii .  250 

2.  A  reference  to  the  improvements  through 
winch  a  projected  road  is  to  pass,  need 
not  be  made  in  the  report  of  viewers,  &c. 
They  may  be  shewn  in  the  plot  or  draft. 

ii  250 

3.  The  Sessions  have  power  to  order  a  re- 
review  of  a  road,  although  the  act  of  as- 
sembly does  not  expressly  authorize  it. 

ii.  250 

A,  If  it  appears  by  the  report  of  viewers, 
that  a  county  commissioner  attended  the 
view,  it  is  sufficient  to  shew  that  notice 
•was  given  to  the  commissioners,  agreea- 
bly to  the  standing  order  of  the  Sessions. 

ii.  25u 

5.  A  report  of  a  road  by  viewers,  &c.  with- 
out a  plot  or  draught  in  addition  to  the 
courses  and  distances,  is  bad.  Road  from 
Warrior  Run,  iii.  3 

6.  It  is  not  requisite  that  a  petition  for  a 
road  should  state  whether  it  is  &  public  on 
a  private  road  that  is  wanted  ;  this  is  to 
be  decided  by  the  viewers,  and  stated  in 
their  report.  Case  of  Spear's  Road,  iv.  174 

7-  If  an  order  of  Sessions  directs  reviewers 
to  review  the  ground  and  places  between 
certain  points  where  a  road  is  required, 
and  if  they  are  of  opinion  that  a  road  is 
necessary  between  those  points,  to  pro 
ceed  to  lay  it  out,  and  the  reviewers 
make  return  that  "  in  pursuance  of  the 
"  said  order,  they  have  viewed,  laid  out 
"and  returned  the  following  road,  &c."it 
will  be  presumed  that  they  viewed  the 
ground  and  places  between  the  points 
referred  to  in  the  order.  ibid. 

8.  It  is  not  necessary  for  a  report  of  viewers 
to  state,  thai  in  laying  out  a  road,  "  they 
"  had  respect  to  the  best  ground  for  a 
"  road,  and  the  shortest  distance,  in  such 
"  a  manner  as  to  do  the  least  injury  to 
"  private  property;"  if  they  have  not  had 
such  respect,  it  may  be  shewn  in  the 
Quarter  Sessions.  ibid. 


9.  If  a  petitioner  for  a  road,  acts  as  a  re- 
viewer, it  is  fatal  to  the  proceedings. 
Radnor  road,  v.  612 

10.  the  Commonwealth  has  a  constitutional 
right  to  authorize  a  turnpike  company  to 
lay  out  a  road  through  the  private  ground 
of  the  citizen  without  making  compensa- 
tion for  the  soil.  M'C'lenachan  v.  Curiuen, 

vi.  509 

ROBBERY. 

To  constitute  robbery,  there  must  be  a  felo- 
nious  taking  oi  property  from  the  person 
ot  another  by  force  either  actual  or  con- 
structive ;  but  if  force  be  used,  it  is  not 
essential  that  the  prosecutor  should  be 
either  aware  or  afraid  of  the  taking. 
Hence,  where  the  prisoner  took  the  pro- 
secutor by  the  cravat,  with  an  intention 
to  steal  his  watch,  and  also  pressed  his 
breast  against  the  prosecutor's,  and  held 
him  against  a  wall,  during  which  time  he 
took  the  prosecutor's  watch  from  his  fob, 
without  his  knowledge,  and  without  his 
suspecting  any  intention  of  felony,  this 
was  held  to  be  robbery.  Common-wealth  v. 
Snelling,  iv.  379 

SALE. 
See  SHERIFF,  1. 

1.  A  sale  of  lands  after  the  return  day  of 
the  vendttioni  exponas,  is  not  void,  if  the 
lands  were  advertised  for  sale  on  a  day 
before,  "and  the  sale  was  continued  by 
adjournment.  Burdv.  The  Lessee  of  Dans- 
dale,  ii.  80 

2.  Where  a  levy  is  set  aside,  and  a  vendi- 
tioni  exponas  is  issued  without    a  fresh 
levy,  a  sale  under  it  is  void.  ii.  80 

3.  An  inquisition  is  not  necessary  to  the 
sale  of  an  estate  for  life,  or  any  other  es- 
tate of  uncertain  duration.  ii   80 

4.  Jl  sold  goods  to  Ji,  payable  at  sixty  days 
with  interest  thereafter  to  be  paid  when 
taken  away,  not  to  exceed  ninety  days. 
B  did  not  take  the  goods  away  in  the 
time  prescribed.  Afterwards  Jl,  who  was 
a  commission  merchant,  agreed  to  take 
the  goods  on  sale  for  B,  and  to  credit 
him  with  the  proceeds  ;  and  B  engaged 
to  make  up  any  loss  that  might  accrue 
on  the  sales.  Held,  that  Ji  was  not  bound 
to  sell   at  all  events,   but  only  to  use 
reasonable  exertions ;  and  after  these  had 
failed,  and  notice  given  to  B  to  pay  for 
the  goods  and  take  them  away,  A  might 
maintain  an  action  for  the  price  ;  but  the 
notice  to  B  was  indispensable.  Hazard  v. 
Van  Jlmringe,  iv.  289 

5.  Ji  received  from  JB  a  sum  of  money,  and 


GENERAL  INDEX. 


609 


£ave  him  a  receipt  stating1  it  to  be  for 
"an  advance  on  a  shipment  of  cotton 
"shipped  on  board  a  certain  vessel  and 
"  consigned  to  B  and  C,  and  also  on  a 
"  shipment  now  making  of  flour  and  cot- 
"  ton  on  board  a  certain  other  ship,  to  be 
"  consigned  also  to  B  and  C." — Ji  then 
bought  a  quantity  of  flour  from  D  on  a 
credit,  of  60  and  90  days,  contracted  with 
the  husband  of  the  last  mentioned  ship 
for  the  freight  of  it,  and  it  was  delivered 
on  the  wharf  by  the  porters  of  D,  and 
put  on  board  the  ship.  D  then  applied  to 
A  for  his  notes  agreeably  to  the  terms 
of  sale,  who  refused  to  give  them,  hav- 
ing stopt  payment.  Held,  that  the  deli- 
very of  the  flour  was  complete,  so  as  to 
divest  the  property  out  of  Z),  notwith- 
standing the  refusal  to  deliver  the  notes, 
and  therefore  that  he  could  not  regain 
the  possession  by  replevin.  Clemson  v. 
Davidson,  iv.  405 

6.  The  plaintiff  sold  to  the  defendant "  three 
"  tracts  of  land  containing  nine  hundred 
"  ninety-one  acres  and  a  quarter  and  allow- 
"  ance,  at  twelve  shillings  and  sixpence  per 
"  acre."  The  plaintiff  afterwards  obtained 
patents  in  his  own  name,  and  executed  a 
conveyance  of  the  tracts  to  the  defendant, 
describing  them  by  courses  and  distances 
according  to  the  patents,  and  stating 
them  as  "  containing  in  the  whole  nine  hun- 
"  dred  ninety-one  acres  and  a  quarter,  and 
"  allowance  &c,  be  the  same  more  or  less." 
The  defendant  having  previously  paid  a 
part  of  the  purchase  money,  gave  his 
bonds  to  the  plaintiff  on  the  day  after 
the  conveyance,  for  the  sum  remaining 
due,  with  a  mortgage  on  the  three  tracts, 
stating  them  to  contain  "  in  the  whole  nine 
"  hundred  ninety-one  acres  and  a  quarter, 
"  and  alloivance,"  and  describing  them 
by  courses  and  distances.  Upon  a  survey 
made  twelve  years  afterwards  the  tracts 
were  ascertained  to  fall  short  88  acres 
48  perches,  field,  that  the  defendant  was 
not  entitled  to  any  deduction  from  his 
bonds,  on  account  of  the  deficiency. 

§>u<ere;  how  the  law  would  have  been, 
if  the  case  had  stood  on  the  original 
agreement,  without  the  subsequent  ac- 
ceptance of  the  deed,  anjl  the  mortgage. 
Smith  v.  Evans,  vi.  102 

SCILICET. 

The  office  of  a  scilicet  is  to  render  some- 
thing more  certain,  which  was  expressed 
in  doubtful  or  general  terms  before.  If 
instead  of  doing  that,  it  contradicts  or 
destroys  what  went  before,  it  must  he 
rejected  altogether ;  e.  g.  an  award  that 
defendant  shall  pay  120/.  in  two  years, 
scilicet  in  yearly  payments  of  30/.  each,  is 
VOL.  VI. 


to  pay  the  whole  sum  in  two  years.  Haak 
v.  Breidenbach,  vi.  12 

SCHOOLMASTER. 

An  act  of  the  legislature  directing  the 
county  commissioners  to  draw  an  order 
for  the  amount  of  a  schoolmaster's  bill, 
for  educating  poor  children,  if  they  ap- 
prove thereof,  invests  them  with  the 
power  of  approving  or  disapproving ; 
and  if  they  disapprove,  though  for  bad 
reasons,  this  Court  cannot  compel  them 
by  mandamus  to  draw  the  order.  The 
Common-wealthy.  The  County  Commissioners, 

v.  536 

SCIRE  FACIAS. 

See  PRACTICE,  19.  22. 

JUSTICE  OF  THE  PEACE,  15. 

1.  The  record  of  a  judgment  by  a  justice  of 
the  peace  still  re m  ins  before  him,  and 
may  be  the  foundaticm  of  a  scire  facias 
after  a  transcript  has  been  filed  in  the 
Common  Pleas.   Dnim  v.  Snycitr,    i.  381 

2.  If  the  lands  of  the  defendant  are  aliened 
by  him  before  the  plaintiff's  judgment  or 
execution,  the  plaintiff  is  not  obliged  to 
take    a   scire  facias  against  the   terre- 
tenants  before  he  can  have  execution  in 
the  hands  of  the  alienee.  Toung  v.  Taylor •, 

ii.  218 

3.  "A  scire  facias  is  not  necessary  to  con- 
tinue a  lien  upon  lands,  by  the  act  of 
4tti  April  1798,  if  an  execution  has  issued 
upon  the  judgment  within  a  year  and  a 
day.  ibid. 

4.  A  private  agreement  for  a  stay  of  execu- 
tion, renders  a  scire  facias  unnecessary 
until  a  year  and  a  day  aft«>r  the  stay  is 
out    Lessee  of  Dunlop  v.  Speer,       iii.  169 

5.  A  judgment  loses  its  lien    absolutely, 
unless  revived  by  scire  facias  within  five 
years  from  its  date.    Bank  of  North  Ame- 
rica v.  Fitzsimons,  iii-  342 

6.  Where  one  plaintiff  dies  after  judgment, 
the  survivor  may  have  execution  without 
scire  facias,  suggesting  the  death  of  his 
co-plaintiff  on  the  record,  or  reciting  it 
in  the  writ.     Secus  if  the  survivor  is  a 
feme,  who  afterwards  takes  baron.    Ber- 
njhill  v.  H'ells,  V.  56 

SEA  LETTER. 
See  INSURANCE,  35. 

SEAWORTHINESS. 
See  CARRIER,  2,  3,  4,  5. 
After  two  verdicts  the  same  way  upon  the 
question  of  seaworthiness,  the  court  will 

4H 


610 


GENERAL  INDEX. 


not  grant  a  new  trial.    Sell  v.  Reed  and 
Beelor,  iv.  127 

SEIZURE. 

There  is  nothing  in  the  law  of  nations  to 
prevent  any  sovereign  from  punishing  the 
violation  of  his  municipal  laws  by  seizure 
on  the  high  seas,  out  of  his  own  territory, 
and  not  within  the  territory  of  any  other 
sovereign.  Cher  lot  v  Fottssat,  iii.  220 

SESSIONS. 
See  QUARTER  SESSIONS. 

SET-OFF. 
See  ORPHANS'  COURT,  2. 

1.  Jl  is  indebu  d  to  B  and  C  partners  in 
trade,  who  issue  a  foreign   attachment 
against  his  effects  in  the  hands  of  D. 
Jlfter  the  death  of  B  and  C  the  executors 
of  C  who  was  surviving  partner,  obtain 
judgment  against  the  defendant  and  the 
garnishee.    B  and  C  were  the  indorsees 
of  a  note  which  wus  discounted  by  Dt 
and  which  fell  due  after  their  death,  and 
was  protested  for  nonpayment.  The  debt 
to   D   by    B   and   C  cannot   be   set  off' 
against  the  debt  due  by  D  as  garnishee 
of  Jl  to  C'*  executors.     A's  debt  upon 
the  death  of  B  and  C  became  vested  in 
their  creditors  generally,  whose  rights 
cannot  be  changed  by  any  subsequent 
proceedings  between  the  executors   and 
garnishee.    Cramond  v.  The  Sank  of  the 
United  States,  i.  64 

2.  The  assignee  of  a  policy  of  insurance, 
takes  it  subject  to  all  defalcations    to 
which  it  was  liable   before  the   assign- 
ment. Roiisset  v .  The  Insurance  Company 
ofJYorth  America,  i.  429 

3.  In  a  suit  by  the  assignee  of  a  policy  of 
insurance,  the  insurers  may  setolfadebt 
due  by  the  assignor  at  the  time  of  effect- 
ing the  policy  though  it  be  an  open  policy 
and  the  claim  for  a  partial  loss.       i.  429 

4.  If  the  defendant  has  an  equitable  de- 
mand against  the  plaintiff,  as  for  instance 
a  bond  given  by  the  plaintiff  to  a  third 
person,  and  by  him  informally  assigned 
to  the  defendant,  the  court  will  permit 
him  either  to  set  it  off  against  the  plain- 
tiff's demand,  or  give  it  in  evidence  un- 
der the  plea  of  payment.  Murray  v.  Wil- 
liamson, iii.  135 

5.  It  is  not  essential  to  a  set-off  that  the 
defendant  should  be  able  to  sue  for  it  in 
his  own  name.  ibid. 

6.  There  is  nothing  in  the  defalcation  act  of 
Pennsylvania  to  exclude  a  set-off  either 
by  or  against  an  executor  or  administra 


tor.  On  the  contrary  that  act  has  uniform- 
ly been  construed  to  admit  it.        iii.  135 

7.  A  judgment  against  Jl  was  assigned  to 
B  to  secure  money  leiit  to  A,  and  which 
^covenanted  by  articles  of  agreement  to 
repay  on  a  certain  day.  The  court  refus- 
ed to  stay  execution  upon  this  judgment 
to  give  a  time  to  obtain  a  verdict  against 
B  for  damages  in  consequence  of  tortious 
acts  by  him  in  breach  of  his  covenants  in 
the  same  articles  ;  though  it  seems  they 
would,   had  A's  claim   been  for  money 
paid,  or  any  other  matter  susceptible  of 
liquidation.  Lessee  of  Dunlop  v.  Speer, 

iii.  169 

8.  Damages  for  breach  of  contract  may  be 
set  off  under  the  defalcation  act  of  Penn- 
sylvania, ibid. 

SETTLEMENT. 
See  IMPROVEMENT. 

1.  A  slave  has  a  settlement  in  the  township 
where  his  master  resides,  which  is  bound 
in  the  first   instance    to    support    him, 
though   it  may    have    a    remedy    over 
against  his  master  or  his  estate.  So  in  the 
case  of  a  manumitted  slave,  who  has  not 
acquired  a  settlement  in  another  town- 
ship since  his  manumission.    Overseers  of 
Forks  v.  Overseers  of  Cataviessa,        iii.  22 

2.  An  indented  servant,  imported  from  Eu- 
rope into  this  stale,  gains  a  legal  settle- 
ment where  he  first  serves  sixty  days, 
either  with  the  master  to  whom  lie  was 
indented,  or  with  his  assignee;  and  it  is  of 
no  consequence,  that  the  assignment  is 
voidable  by  the  servant,  because  not  duly 
made  in  the  presence  of  a  justice,  pro- 
vided the  servant  performs  his  service 
under  it.  Reading  v.  Cumree,  v.  81 

3.  If  the  assignment  of  an  indented  servant 
be  absolutely  void,  yet  a  service  perform- 
ed to  the  assignee  in  one  township,  with 
the  consent  of  the  master  in  another,  is  a 
service  with  the  master  in  the  township 
of  the  assignee,  and  obtains  a  settlement 
there.  ibid. 

SERVANTS. 

The  term  "servants,"  whose  wages  are  by 
the  act  of  l?94to  be  paid  out  of  an  intes- 
tate's estate,  in  the  same  rank  with  phy- 
sic, and  funeral  expenses,  embraces  those 
only  who  in  common  parlance  are  called 
servants,  persoijs  who  make  part  of  a 
man's  family,  and  whose  business  it  is  to 
assist  in  the  economy  of  the  family,  or  in 
matters  connected  with  it.  But  it  does 
not  comprehend  -workmen,  employed  at 
iron  works  and  the  like.  Ex  pane  Meason, 

v.  167 


GENERAL  INDEX. 


SHERIFF. 

See  TRESPASS,  1,  2. 
EVIDENCE,  40- 

Poi'NDAGE,  1,  2. 

INTEREST,  9. 

1.  The  sheriff  cannot  make  a  lumping  sale 
of  distinct  parcels  of  property  which  ht 
has  taken  in  execution.     He  should  sel 
them  distinctly.   Rcnvlty  \.  Br<rwn,     i.  61 

2.  If  the  sheriff  with  the  money  raised  by 
an  execution  on  land,  pays  off  mortgages 
or  judgments  which  had  a  lien  prior  to 
the  judgment  under  which  the  sale  was 
made,  he  is  entitled  to  poundage  upon 
the  amount  so  paid,  though  it  exceed  the 
real  debt  in  the  execution.  Petry  v.  Beau- 
varlet,  i.  97 

3.  In  an  action  against  the  sheriff  for  the 
misconduct  of  his  officer  in  the  execu- 
tion of  a  writ,  it  is  not  necessary  to  shew 
a  particular  warrant  to  the  officer;  this  is 
necessary  only  in  the  case  of  a  bailiff;  but 
in  Pennsylvania,  there  are  no  bailiffs,  their 
place  being  supplied  by  deputies  whose 
authority  is  sufficiently  shewn,  by  proof 
of  a  general   privity  with    the   sheriff. 
Hazard  v.  Israel,  i.  240 

4.  The  sheriff  is  answerable  for  the  miscon- 
duct of  his  deputy,  whether  he  recog 
nises  and  adopts  his  acts  or  not.      i.  240 

5.  A  jury  may  give  exemplary  damages 
against  a  sheriff  for  the  misconduct  of 
his  deputy.  i.  240 

6.  If  a  deputy  sheriff  enters  the  house  of  an 
administrator  to  look  for  goods  of  the  in- 
testate, and  afterwards  proceeds  to  levy 
upon  the  goods  of  the  administrator  from 

,    whom  nothing  is  due,  he  is  a  trespasser 
ab  initio.  \.  240 

7.  Where  the  sheriff  levies  upon  goods  in 
the  defendant's  possession,  the  court  will 
not  stay  proceedings  and  direct  an  issue 
to  try  the  property,  upon  an  allegation 
that  the  goods  belong  to  a  third  person. 
Insurance  Company  of  i'tnnsyl'vunia  v.  Ket- 
land,  i.  499 

8.  As  between  a  debtor  or  his  representa- 
tives and  the  sheriff  who  soils  the  debt- 
or's land  by  execution,  a  purchase  by  the 
sheriff,  or  by  any  one  in  trust  for  the  she- 
riff, without  the  debtor's  consent,  is  void; 
but  if  the  debtor  consented  to  such  a  pur- 
chase,his  representatives  cannot  impeach 
it  ;  and  even  if  he  did  not  know  or  con- 
sent, the  sale  cannot  be  disturbed  to  the 
prejudice  of  a  bonufde  purchaser  without 
notice.   Lessee  of  Lazarus  v.  Bnjson,  iii.  54 

9.  There  is  no  difference  between  a  sheriff 
and  a  common  trustee,  as  to  the  right  of 
either  to  become  the  purchaser  at  a  sale 


of  the  property  under  his  control,  or  as 
to  the  effect  of  such  a  purchase  upon  a 
subsequent  purchaser  without  notice,  ib. 

10.  The  sureties  of  a  sheriff  are  liable  in 
damages  for  the  sheriff's  trespass,  in 
seizing  and  selling  the  goods  of  B,  under 
an  execution  against  A;  but  a  judgment 
in  trover  against  the  sheriff  alone,  for  the 
same  cause,  is  not  binding  upon  the  ques- 
tion of  damages  in  a  suit  against  the  she- 
riff and  sureties.  Carmachv.  The  Common- 
wealth, v.  184 

11.  A  judgment  in  trover  against  the  sheriff, 
is  neither  an  extinguishment  of  his  offi- 
cial security,  nor  a  bar  to  a  suit  against 
his  sureties.    It  is  but  one  of  several  re- 
medies, which  the  injured  party  may  use 
successively,  until  he  obtains  satisfaction. 

ibid. 

12.  A  general  return  of  "  levied  on  goods 
"as  per  inventory,"   does  not,  by    the 
practice  in  Pennsylvania,  discharge  the 
defendant,  and  make  the  sheriff  liable 
for  the  whole  debt.£  He  is  liable  only  for 
the  value  of  the  goods  upon  which  a  levy 
was  made,  or  might  have  been  made  ; 
and  on  his  paying  the  nett  sales,  an  alias 
goes  for  the  residue,  without  application 
to  the  court.   Little  v.  Lessee  of  Uelancey, 

V.  266 

SHERIFF'S  DEED. 

I.  The  court  will  not  permit  the  sheriff  to 
acknowledge  a  deed  to  a  purchaser,  if 
the  sale  has  been  made  under  void  or  ir- 
regular process.  Yonr.g  v.  Taylor,  ii  218 

I.  If  the  late  sheriff  has  executed  a  deed, 
and  acknowledged  it  defectively,  his  suc- 
cessor cannot  under  the  act  of  23d  March 
17"64,  execute  a  new  deed  ;  but  the  late 
she;  iff  may  acknowledge  it  again,  though 
out  of  office.  Adams  v.  Thomas,  vi.  254 

SHERIFF'S  SALE. 

See  SALE,  1,  2,  3. 
SHERIFF,  8,  9. 

leplevin  lies  against  the  sheriff's  vendee, 
to  recover  the  possession  of  chattels 
wrongfully  taken  in  execution  and  sold. 
Shcarick  v.  Huber,  vi.  2 

SHIFTED  LOCATION. 

See  LOCATION,  2. 

WARRANT  AND  SURVEY,  4  3J.. 

SHIP. 

.  Charges  upon  ship,  held  to  mean  charges 
upon  the  sale  of  the  ship,  not  upon  her 
voy  ge,  as  seamen's  wages,  provisions 
and  the  like.  Dusar  \.  Perit,  iv.  "61 


612 


GENERAL  INDEX. 


2.  If  a  ship  is  driven  by  stress  of  weather 
into  a  port  out  of  her  course,  the  charge 
of  the  cargo  devolves  upon  the  master, 
whose  duty  it  is  to  take  proper  care  of  it. 
Such  goods  as  are  damaged,  or  are  of  a 
perishable  nature,  he  has  power,  without 
reference  to  repairing  the  ship,  to  sell. 
But  those  which  are  in  good  condition, 
and  not  perishable,  he  has  no  such  right 
to  sell  without  the  order  of  the  owner,  to 
whom  he  is  bound  to  give  immediate  in- 
formation. If  contrary  to  this  duty  he 
sells,  he  is  personally  answerable.  Smith 
V.  Martin,  vi.  262 

SLANDER. 

1.  In  an  action  of  slander,  the  defendant 
may  give  in  evidence,  in  mitigation  of 
damages,  that  a  third  person  told  him 
what  he  related.  Kennedy  v.  Gregory,  i.  85 

2.  In  slander  the  declaration  is  goofl.though 
it  charge  that  the  defendant  spoke  cer- 
tain words  in  substance  as  follows,   t9*c. 
Kennedy  v.  Loiory,  i.  393 

3.  To  call  a  clergyman  a  drunkard  is  ac- 
tionable. M'Millan  v.  Birch,  i.  178 

4.  Words  spoken  by  the  defendant  of  and 
to  the  plaintiff  before  a  church  presbyte- 
ry, in  the  course  of  his  defence  against 
charges  there  brought  against  him  by  the 
plaintiff,  are  not  actionable,  if  he  did  not 
wander  designedly  from   the  point   in 
question,  for   the   purpose   of  uttering 
them.  i.  178 

5.  To  say  of  a  man  "  he  has  sworn  false"  is 
not  actionable,  the  colloquium  being  of 
an  extrajudicial  affidavit  before  a  justice 
of  the  peace.  Shaffer  v,  Kintzer,        i.  537 

6.  Words  laid  in  the  second  person  are  sup- 
ported by  evidence  that  they  were  spo- 
ken in  the  third.  Tracy  v.  ffarkins,  i.  395 

7.  In  an  action  of  slander,  it  is  enough  if  it 
be  substantially  alleged  that  the   words 
were  spoken  of  the  plaintiff;  an  express 
averment  of  that  fact  is  not  necessary. 

'  Brawn  v.  Lamberton,  ii.  34 

8.  To  say  of  a  married  man,  "he  played 
"  with  Mary  Parkinson  in  a  fother  room, 
"  and  Robert  the  second  son  of  Parkinson 
"  belongs  to"  the  plaintiff',  is  actionable. 

ibid. 

D.  "  She  swore  a  false  oath,  and  I  can  prove 
"  it,"  are  not  actionable  ;  nor  are  the 
words  helped  by  an  innuendo  of  perjury. 
Packer  v.  Spongier,  ii.  60 

10.  If  referees  in  an  action  of  slander,  award 
to  the  plaintiff  a  sum  under  forty  shillings 
toith  costs,  he  is  entitled  to  no  more  costs 
than  damages.  Secus  if  they  award  full 
costs.  The  Supreme  Court  has  adopted 


the  English  rule,  that  although  the  court 
is  bound  by  the  statute,  the  jury  is  not, 
but  may  give  16Z.  costs,  though  they  only 
give  lOrf.  damages.  Stuart  v.  Harkins, 

iii.  321 

11.  "I  have  lost  a  calfskin  out  of  my  cellar 
"  the  day  that  you  and  Born-man  got  the 
"  leather,  and  there  was  nobody  in  the 
"  cellar  but  you,  Bomman,  and  Gray;  and 
"  I  do  not  blame  you  nor  Gray,  but  Born' 
"man  must  have  taken  it,"  is  slander, 
without  any  colloquium  of  a  felony.  Born- 
man  v.  Boyer,  iii.  515 

12.  After  the  words  laid  in  the  declaration 
are  proved,  the  plaintiff  may  give  in  evi- 
dence other  words,  actionable  in  them- 
selves, and  spoken  since  the  suit  brought, 
to   shew  the  malice  of  the  defendant. 
Wallis  v.  Mease,  iii.  546 

13.  Slander  of  husband  and  wife  cannot  be 
joined  in  the   same  count.    Ebersoll  v. 
Krug,  iii.  555 

14.  With  certain  exceptions  as  to  persons 
in  office,  special  damage  &c.,  -words  are 
not  actionable  unless  they  contain  a  plain 
imputation  of  some  crime  liable  to  pu- 
nishment. And  unless  the  words,  in  their 
natural  and  obvious  meaning,  impute  a 
crime.no  innuendo  can  help  them.  M'Clurg 
v.Ross,  v.218 

15.  Hence,  to  say  of  a  man,  that  "  he  was  an 
"  "  United  Irishman,  and  got  the  money  of 

"  the  United  Irishmen  into  his  hands,  and 
"  ran  a-way  with'jt,"  is  not  actionable,  be- 
cause it  imputes  a  breach  of  trust,  rather 
than  a  felony,  And  if  it  might  be  consi- 
dered to  impute  a  felony  in  a  common 
case,  yet  the  jury  having  found  that  the 
United  Irishmen  were  an  association 
formed  in  Ireland  for  the  purpose  of  over- 
turning the  government,  it  could  be  no 
felony  to  dispossess  them  of  their  funds. 

ibid. 

16.  A  declaration  that  the  defendant  said 
"there  was  a  collusion  between  A,  B, 
"and  C,  to  make  a  third  person  swear  a 
"  false  oath,  Sic."  is  not  supported  by 
proof  of  his  having  said  "  there  was  a  col- 
"  lusiou  between  JL  and  B,  to  make,  &c." 
Johnson  v.  Tait,  vi.  121 

17.  If  the  words  laid  are  "  he  stole  the  goods 
"of  JL"  they  are  not  supported  by  proving 
the  words  to  have  been  "  he  stole  the 
"  goods  of  B"  ibid. 

SLAVE. 

See  NEGRO  and  MULATTO,  1,  2. 

SETTLEMENT,  1. 

1.  An  indenture  of  service  made  by  A  feme 
.  covert  slave,  in  consideration  of  her  manu- 


GENERAL  INDEX. 


613 


mission  is  good.     The  Common-wealth  v. 
Clements,  vi   206 

2.  The  domestic  slave  of  a  member  of  con- 
gress  from  South  Carolina,  who  during' 
the  recess  of  congress  attends  the  family 
of  his  master  in  this  state,  whe re  it  had 
taken  a  temporary  residence,  does  not 
acquire  freedom  by  being  retained  in  the 
state  longer  than  six  months.  The  Com- 
monwealth v.  Hollaviay,  vi.  213 

SOLDIER. 
See  DONATION  LAND. 
INLISTMENT. 

SPECIAL  BAIL. 
See  BAIL. 

SPECIAL  WARRANTY. 

1.  In  an  action  of  covenant  upon  a  special 
warranty,  the  covenantee,  in  order   to 
prove  that  he  has  been  evicted  by  a  per- 
son claiming  by,  from  or  under  the  cove- 
nantor,   may  shew   by    pa''ol    evidence 
what  was  the  testimony  given  upon  the 
trial  of  the  ejectment  which  resulted  in 
his  eviction.    He  is  not  bound  10  call  the 
witnesses,  nor  to  produce  the  original 
documents.  Leather  v.  Poultney,      iv.  352 

2.  If  the  covenantor  has  notice  of  an  eject- 
ment against  his  warrantee  by  a  person 
claiming  by,    from   or   under   him,  and 
agrees  to  defend,  quaere  whether  the  evi- 
dence given  upon  the  trial  that  the  plain- 
tiff claimed  under  him,  is  not  conclusive 
upon  him.  If  he  has  not,  it  is  prima  facie 
only.  iv.  352 

SPECIALTY. 

A  claim  against  an  intestate's  estate  for  da- 
mages on  account  of  the  breach  of  arti- 
cles of  agreement  under  seal,  is  a  debt 
by  specialty  within  the  meaning  of  the 
14th  section  of  the  act  of  19th  April  1794 
Frazer  v.  Tunis,  i.  254 

STATUTES. 

For  the  British  statutes  in  force  within  the 
state  of  Pennsylvania,  see  the  Report  of 
the  Judges  of  the  Supreme  Court,  made 
to  the  legislature  in  December  1808. 

iii.  595  et  seq. 

SUMMARY  RELIEF. 

1.  If  the  sheriff  upon  an  habere  facias,  deli- 
vers to  the  plaintiff  the  proportion  that 
he  has  recovered  in  ejectment,  and  be- 
fore the  return  day  of  the  writ,  the 
plaintiff  actually  ousts  the  defendant  of 


the  whole,  it  seems  that  the  court  will 
restore  the  defendant  in  a  summary  way. 
Lessee  of  Gardiner  v.  Bridge  Company, 

ii.  450 

2.  The  comt  wM  not  interpost-  summarily, 
to  stay.exi-cuiion,  unless  the  defendant's 
case  is  made  out  entirely  to  their  satis- 
faction. Pearcev.  Affleck,  iv.  344 

SUPERSEDEAS. 
See  ERROR,  27. 

SUPERVISORS. 
See  CONVICTION. 

SUPREME  COURT. 

1.  The  justices  of  the  Supreme  Court  have 
jurisdiction  as  justices  of  assize.  Ltvezey 
v.  Gorgas,  ii.  192 

2.  The  Supreme  Court  has  no  authority  to 
try  an  issue  in  fact  in   any  part  of  the 
state,  except  the  county  of  Philadelphia  ; 
and  therefore   it  cannot  in  the  western 
district  entertain  a  motion  for  leave  to 
file  an  information  in  the  nature  of  a  quo 
viarranto,  because   an   issue  in  fact  may 
arise  out  of  it.   Commonwealth  v.  Smith, 

iv.  117 

3.  The  sixth  section  of  the  fifth  article  of 
the  constitution  of  Pennsylvania,  does  not 
prohibit    the    legislature    from     taking 
away   or  modifying  the  powers  before 
that  time  usually  exercised  by  the  judges 
of  the  Supreme  Court.    It  was  intended 
to  have  an  affirmative  effect,    by  intro- 
ducing certain  chancery  powers,  and  not 
the  negative  one  of  prohibiting  the  tak- 
ing away  of  any  powers  before  that  time 
exercised.  ibid. 

4.  The  Supreme  Court  exercised  no  origi- 
nal jurisdiction  in  civil  actions,  until  the 
year  1786,  except  as  to  fines,  and  com- 
mon recoveries.  ibid. 

5.  The  Supreme  Court  cannot  discharge  an 
insolvent  debtor,  who  is  in  confinement 
under  process  from  the  District  Court. 
Ex  pane  Ogle,  v.  518 

6.  The  Supreme  Court  may  issue  a  manda- 
mus in  any  of  the  districts,  notwithstand- 
ing the  act  of  24th  February  1806,  prohi- 
biis  that  Court  from  trying  issues  of  fact 
in  bank ;  because  as  the   return  to  the 
mandamus  must  be  received  as  true,  until 
proved  to  be  false  in  an  action  for  a  false 
return  which  may  be  brought  in  some 
other  court,  the  Supreme  Court  may  pro- 
ceed to  the  end  of  the  mandamus,  with- 
out trying  any  fact.    Commonwealth  v.  The 
Coinmif  sioners  of  Lancaster  Countv,       vi.  5 


614 


GENERAL  INDEX. 


7.  A  mandamus  is  not.  a  civil  cote  within  the 
19th  sec:  ion  of  the  act  of  24th  February 
1806,  the  intent  of  that  section  being,  to 
take  away  the    original   jurisdiction  in 
civil  actions,  of  which  the  inferior  courts 
had  jurisdiction,  and  not  to  take  it  away  in 
cases  of  mandamus-nnd.  the  like,  of  which 
those  courts  had  no  jurisdiction.        vi  5 

8.  The  Court  will  not  grant  &  mandamus  to 
the  county  commissioners  to   draw  an 
order  upon  the  treasury,  if  there  is  no 
money  in  the  treasury  to  pay  it.         ibid. 

SURETY. 
See  PRINCIPAL  AND  SURETY. 

1.  The  surety  in  a  customhouse  bond  is  en- 
titled to  priority  of  payment  out  of  a 
bankrupt's  estate  for  both  principal  and 
interest  of  the  sum  paid  by  him  to  the 
United  States.  Champneys  v.  Lisle,,  i.  327 

2.  If  a  surety  pays  the  debt  of  his  principal, 
he  is  entitled  to  the  benefit  of  the  fund 
assigned  by  the  principal  to  the  creditor 
as  a  security ;  and  if  that  fund  has  been 
converted  into  money,  the  surety  may 
recover  it  in  an  action  for  money  had  and 
received.  Miller  v.  Ord,  ii.  382 

SURETY  OF  GOOD  BEHAVIOUR. 

1.  The  Supreme  Court  has-  no  authority  to 
moderate  or  remit  a  recognisance  of  good 
behaviour  that  is  forfeited  by  an  act  out 
of  court.  Commonwealth  v.  Davies,    i.  97 

2.  It  is  most  agreeable  to  the  spirit  of  the 
constitution,  to  adopt  it  as  a  general  rule 
not  to  demand  surety  of  good  behaviour 
before  conviction.    The  Common-wealth  v. 
Duane,  i.  102 

SURVEY. 

See  WARRANT  AND  SURVEY. 
INSURANCE,  7.  12. 
EVIDENCE,  3.  21.  34.49. 
EJECTMENT,  4. 

SURVEYOR. 

See  EVIDENCE,  3.  21. 

1.  Unless  the  surveyor  marks  all  the  lines 
of  each  tract,  in  a  body  of  lands,  he  is  not 
entitled  to  the  full  compensation  given 
by  law.  Woods  v.  Ingersoll,  i.  146 

2.  Although  a  deputy  surveyor  is  not  enti- 
tled by  law  to  the  full  fees  of  a  survey, 
unless  all  the  lines  are  run  and  marked, 
yet  if  an  imperfect  survey  has  been  ac- 
cepted by  the  owner  without  objection, 
and  the  full  fees  paid  to  the  deputy  sur- 
veyor, the  latter  cannot  claim  to  diminish 
the  usual  compensation  of  the  surveyor 


who  performed  the  work  under  him,  by 
objecting  to  the  manner  in  which  the 
work  was  done,  floss  v.  Evum,  iii.  50 

3-  A  deputy  surveyor's  receipt  is  good  evi- 
dence to  prove  the  payment  of  the  fees 
and  expenses  of  survey  ;  but  not  so  his 
certificate  of  payment,  given  after  the 
expenses  had  been  paid.  Lessee  of  dug  - 
gage  v.  S-aan,  iv.  150 

4.  If  a  deputy  surveyor  by  mistake  returns 
two  surveys  as  adjoining,  when  in  truth 
there  are  a  hundred  acres  between  them, 
this  does  not  preclude  him  from  taking 
out  in  his  own  name  a  warrant  for  the 
intermediate  land,  after  the  mistakr  is 
discovered.  Otherwise,  if  he  fraudulently 
makes  the  return,  with  a  view  to  secure 
the  land  for  himself:  though  even  in  the 
case  of  fraud,  the  land  will  be  open  to 
other  persons.  VPerdman  v.  Felmly,  vi.  39 

TENANTS  IN  COMMON. 

See  WARRANT  AND  SURVEY,  10. 
ACCOUNT  RENDER,  1. 

1.  A  covenant  by  two  tenants  in  common 
to  pay  the  rent  reserved  by  the  landlord, 
is  a  joint  covenant,  notwithstanding  their 
several  interests  in  the  land.  Phillips  v. 
JSonsatl,  ii.  138 

2.  The  testator,    after  devising  one  third 
of  the  surplus  of  his  estate  to  his  four 
sons,    made     the    following    bequest  .- 

'  Item :  I  will  that  one  third  of  the  over- 
'  plus  to  my  three  daughters  Margaret 
'  Carnahan  and  Elizabeth  Smith,  and 
'  Mary  Crasher,  her  par t  of  that  third  to 
'  her  children."  This  is  a  tenancy  in 
common  in  the-  two  daughters  and  the 
children  of  the  third,  and  not  a  joint- 
tenancy.  Martin  v.  Smith,  v.  16 

3.  Jl  and  B  take  out  a  warrant  to  survey 
200  acres  of  land,  pay  the  purchase  mo- 
ney in  equal  proportions,  and  obtain  a 
survey.    Before  a  patent  is  granted,  Jl 
dies.    Held  that  B  has  no  right  of  survi- 
vorship, but  that  Jfs  estate  descends  to 
his  heir.  Caines  v.  Lessee  of  Grant,  v.  119 

4.  Where  two  or  more  take  out  a  warrant, 
pay  the  purchase  money,  and  obtain  a 
survey,  they  hold  as  tenants  in  common, 
unless  the  contrary  is  set  forth;  and  either 
of  them  may  require  that  the  patent  shall 
be  made  in  that  way.  ibid. 

TIME. 

1.  The  record  of  the  proceeedings  \ipon  an 
appeal  from  the  circuit  court,  which  by 
law  is  directed  to  be  filed  before  the  next 
term,  is  in  time  if  filed  before  the  court 
meets  on  the  first  day  of  the  next  trrm. 
Vanlear  v.  Van'.ear,  i.  76 


GENERAL  INDEX. 


615 


2.  Two  years  after  the  pacification  by  Gene- 
ral Wayne's  treaty  with  the  Indians,  is  a 
reasonable  time  for  making  a  settlement, 
which  has  been  prevented  by  the  enemy. 
Lessee  of  Hazard  v.  Lo-uny,  \.  166 

3.  The  day  on  which  the  verdict  is  given, 
is  computed  as   o-ie   of   the  four    days 
which  are  allowed  to  move  for  a  new 
trial.     Lane  v.  Shreiner,  i.  292 

TRAVERSE. 

See  ESCHEAT. 

TREASURER. 
See  APPOINTMENT. 

The  treasurer  of  a  county  hus  no  authority 
in  his  political  capacity  to  bring  an  action 
for  taxes  due  to  the  county  ;  and  if  a 
person  to  whom  laxes  have  been  paid  by 
a  landholder  to  be  handed  over  to  the 
treasurer,  in  consideration  of  that  cir- 
cumstance promise  s  to  pay  the  treasurer, 
this  promise,  although  '"  a  special  case 
it  might  authorize  the  individual  trea- 
surer to  sue  'n>  his  private  character,  will 
not  enure  to  the  use  of  his  successor  so 
as  to  enable  him  to  sue.  Hayes  v.  Grier, 

iv.  80 

TRESPASS. 

See  JUSTIFICATION. 
WAY  GOING  CROP. 

1.  If  a  deputy  sheriff  enters  the  house  of  an 
administrator  to  look  for  goods  of  the  in- 
testate, and  afterwards  proceeds  to  levy 
upon  the  goods  of  the  administrator  from 
whom  nothing  is  due,  he  is  a  trespasser, 
ab  initio.  Hazard  v.  Israel,  i.  240 

2.  If  the  sheriff'  levies  nji.fa  against  Jl, 
upon  property  which  previous  to  the  de- 
livery of  the  execution  he  had  assigned 
with  the  consent  of  most  of  his  creditors 
to  trustees,  for  the  benefit  of  such  as 
should  sign  a  release  in  four  months,  he 
is  a  trespasser,  although  at  the  time  of 
the  levy  no  release  had  been  executed. 
Lippincott  v.  Barker,  ii.  174 

3.  When  a  court  has  jurisdiction  of  the  ac- 
tion, their  officers  are  not  responsible  for 
errors  in  process.     Htcker  v.  Jarret, 

iii.  404 

4.  A  tenant  entitled  to  the  way  going  crop, 
who  enters  and   warns   a  third   person 
against  cutting  it,  may  maintain  trespass 
quare  clausum  fregit  against  the  wrong 
doer,  notwithstanding  he  had,  previously 
to  the  trespass,  given  up  to  his  landlord 
possession  of  the  farm,  in  a  part  of  which 
the  crop  was  growing.    Stitlt;  v.  Dickey, 

v.  285 


5  But  a  tenant  who  has  underlet  a  part  of 
his  farm  to  another,  and  has  then  sur- 
rendered possession  as  before,  cannot 
recover  damages  for  cutting  the  crop  put 
in  by  his  under-tenant.  v.  2d5 

TRUST. 

1.  A  trust  estate  in  Pennsylvania  descends 
in  case  of  intestacy  to  the  heir  at  com- 
mon law.     Lessee  of  Jenks  v.  Backliouse, 

i.  91 

2.  When  an  estate  is  conveyed  in  trust  to 
serve    certain    uses,   a   resulting    trust 
arises  by  implication  of  law  to  the  grantor 
and  his  heirs,  for  all  such  parts  of  the 
equitable  estate,  as  are  not  disposed  of 
by  the  deed.  Lessee  of  Huston  v.  Hamilton, 

ii.  387 

3.  The  act  of  frauds  and  perjuries  of  the 
state  of  Pennsylvania,  does  not  prevent  a 
declaration  of  trust  from  being  made  by 
parol.  Hence  in  an  ejectment  by  the  de- 
visees of  A  against  B,  it  is  competent  to 
give  parol  evidence  of  the  declarations  of 
A,  that  the  land  she  had  purchased  in  her 
own  name,  was  bought  for  the  use  of  B, 
with  money  in  which  her  husband  had 
given  her  only  a  life  estate  by  his  will, 
and  had  devised  it  to  B  after  her  death. 
lessee  of  German  v.  Gabbald,         iii.  3P2 

TRUSTEE. 

See  EXECUTOR,  3,  4. 10. 
SHERIFF,  9. 

1.  Jl  as  agent  for  B  and  to  secure  a  debt  due 
to  him,  takes  a  mortgage  of  real  estate 
in  his  own  name  from  the  debtor,  and 
then  obtains  a  release  of  the  equity  of  re- 
demption. A  retains  the  title  deeds,  and 
B  receives  the  rents  and  profits.  After- 
wards A  lends  his  notes  to  B  and  finally 
takes  them  up,  shortly  after  which  B  is 
declared  a  bankrupt.  H's  assignees  can- 
not recover  the  premises  from  „?,  until 
they  reimburse  him  the  amount  so  paid 
for  B,  Lessee  of  Frazer  v  Hallo-well,  i.  126 

2  A  trustee  is  entitled  to  interest  upon  ad- 
vances for  the  use  of  cestui  que  trust  to 
supply  the  deficiency  of  the  fund.  He  is 
also  entitled  to  an  allowance  for  depre- 
ciated paper  money,  paid  him  during  the 
war  for  rent  of  the  trust  estate,  and  for 
expenses  incurred  in  erecting  proper  and 
necessary  buildings  upon  it,  although  the 
cestui  que  trust  was  not  consulted.  Lessee 
of  Dilivorlh  \.  Sinderling,  i.  488 

3.  A  trustee,  who  is  lessor  of  the  plaintiff 
in  ejectment,  is  a  good  witness  for  the 
defendant  to  shew  that  the  real  trust  is 
different  from  that  declared  in  the  con- 
veyance. Dntmv.  Lessee  of  Simpson, v\A7& 


616 


GENERAL  INDEX. 


TURNPIKE. 
See  ROADS,  10. 

UNITED  STATES. 
See  PRIORITY. 

USE. 
See  TRUST. 

VACATING  WARRANT. 
It  seems  that  the  Proprietaries  had  no  right 
to  vacate  a  warrant,  on  which  purchase 
anoney  had  been  paid,  against  the  con- 
sent of  the  warrantee.  But  if  it  could  be 
done  at  the  request  or  with  the  consent 
of  the  warrantee;  and  long  acquiescence 
by  him  in  the  vacating  order,  is  evidence 
of  consent.  Lessee  of  Mitchellv.  Mitchell, 

iv.  180 

VAGRANT. 

A  justice  of  the  peace  of  the  city  or  county 
of  Philadelphia,  may  commit  any  vagrant 
to  gaol,  to  be  kept  at  hard  labour  for  a 
term  not  exceeding  one  month,  he  being 
thereof  legally  convicted  before  the  jus- 
tice, on  his  own  view,  or  by  the  confes- 
sion of  the  offender,  or  by  the  oath  or 
affirmation  of  one  or  more,  credible  wit- 
nesses. The  Commonwealth  v.  Hallo-way, 

v.  516 

VALUED  POLICY. 
See  INSURANCE,  17. 

VENIRE  DE  NOVO. 

1.  On  the  reversal  of  a  judgment  of  the 
common  pleas  upon  a  bill  of  exceptions 
to  evidencx,  the   Supreme    Court  may 
award  a  -venire  de  novo.    Sterrett  \.  Bull, 

i.238 

2.  Entire  damages  assessed  upon  several 
counts  in  slander,  one  of  which  is  bad. 
Judgment  reversed  and  venire  de  novo 
awarded.  Shaffer  v.  Kintzer,  i.  537 

3.  Jl  venire  facias  de  novo  cannot  be  awarded 
by  this  Court,  if  the  cause  below  was 
tried  by  arbitrators,  and  not  by  a  jury. 
Nor  can  it  be  awarded,  where,  to  enable 
the  plaintiff  to  recover  at  all,  he  must 
state  a  cause  of  action  different  from 
that  which  has  been  already  submitted 
to  the  jury.  Ebersoll  v.  Krug,  v.  51 

4.  The  oiject  of  a  venire  de  novo  is  to  sub- 
mit the  same  cause  of  action  to  another 
jury,  an  error  which  took  place  upon  a 
former  trial  being  corrected.    As  where 
there  has  been  irregularity  in  choosing 
or  returning  the  jury,— error  in  rejecting 


competent,  or  in  admitting  incompetent 
evidence,— error  in  the  Court's  opinion 
upon  the  law  arising  from  the  evidence, 
—entire  damages  assessed  upon  several 
counts,  some  of  which  are  bad, — and  the 
like.  v.  51 

VERDICT. 

See  EVIDENCE,  17. 

If  a  juror  is  struck  from  the  special  jury 
list,  and  then  sworn  as  a  talesman  with 
the  knowledge  of  the  party  who  struck 
him  off,  he  cannot  on  that  account  object 
to  the  verdict.  Jordan  v.  Meredith,  i.  27 

2.  A  verdict  cannot  be  impeached  for  the 
misconduct  of  the  jury,  upon  the  testi- 
mony of  the  jurors  themselves.  Lessee  of 
Cluggage  v.  Sv)ant  iv.  150 

VIEW. 
See  COSTS,  7. 

WAGER. 

See  INSURANCE,  18. 

WARRANT. 

See  CONSTABLE. 

1.  A  warrant  of  arrest,  issued  upon  common 
rumor  and  report  of  the  party's  guilt, 
though  it  recite  that  there  was  danger  of 
his  escaping  before  witnesses  could  be 
summoned  to  enable  the  judge  to  issue 
it  upon  oath,  is  illegal,  and  the  constable 
to  whom  it  is  directed  is  not  bound  to 
execute  it.  Conner  v.  The  Commonwealth, 

iii.  38 

2.  A  warrant  directed  by  a  justice  of  the 

peace  to constable,  if  it  is  executed 

by  the  proper  constable  of  the  district,  is 
well  directed.  Paul  v  Vankirk,      vi.  123 

3.  Prisoner  discharged,  because  the  war- 
rant was  issued  by  the  county  commis- 
sioners to  collect  a  fine,  and  mentioned 
no  proceeding  by  virtue  of  which  it  was 
issued  ;  nor  was  any  shewn  at  the  hear- 
ing.    But  if  the  proceeding  of  a  court 
martial  imposing  it,  had  been  shewn,  the 
Court  would  have  left  the  prisoner  to  his 
action,  and  not  have  decided  summarily 
upon  the  merits.     The  Commonviealth  v. 
Alexander,  vi.  176 

4.  An  arrest  may  be  made  for  felony  with- 
out warrant,  notwithstanding  sec.  7.  art. 
9.  of  the  constitution;  and  a  private  per- 
son may  make  it  at  his  peril :  but  qu&re 
if  he  can  arrest  for  misdemeanor,  e.  *.  for 
receiving  stolen  goods.     Wakely  v.  Hart, 

vi.  316 


GENERAL  INDEX. 


617 


WARRANT  AND  SURVEY. 

1.  It  is  not  essential  to  the  validity  of  a  sur- 
vey of  a  body  of  lands,  that  the  lines  of 
each  tract  should   be  marked    on    the 
ground.     It  is  sufficient  if  the  surveyor 
has  marked  lines  enough  to  identify  the 
particular  tracts.    IVoeda  v.  Ingersoll, 

i   146 

2.  The  proviso  in  the  9th  section  of  the  act 
of  3d  April  1792,  which  excuses  a  settle- 
ment in  case  of  prevention  by  tht-  enemy, 
also  excuses  a  survey.    Lessee  of  Hazard 
v.  Lovsry,  i.  166 

3.  If  a  survey  has  been  duly  made  u  der 
legal  authority,  and  the  land  surveyed 
remains  open  to  purchasors,  a  warr  nt 
coming  afterwards  to  the  hands  of  the 
deputy,   may  be  applied   by  him  to  the, 
survey  already   made,  without  running 
and   marking  the  lines  anew.    Lessee  of 
M'Rliea  v.  Plummer,  i.  227 

4.  A  survey  on  what  is  called  a  shifted  loca- 
tion, is  good  against  a  person  who  had 
notice  of  it  before  the  commencement  of 
his  title,  even  though  the  survey  was  not 
returned.  Lessee  of  Kyle  v.  White,     i.  246 

5.  It  is  no  objection  to  a  survey  made  before 
the  year  1767,  on  lands  purchased  from 
the  Indiana  in  1754,  that  562  acres  were 
surveyed  upon  two  warrants  for  100  acres 
each.  i.  246 

6.  A  survey  under  a  renewed  warrant  is- 
sued from  the  land  office  of  Maryland  in 
1762,  if  the  land  surveyed  is  the  same 
called  for  by  a  warrant  before  4th  July 
1760,  relates  to  the  time  of  the  original 
warrant,  and  is  protected  by  the  agree- 
ment between  the   proprietaries.    Lessee 
of  Ross  v.  Cutshall,  i.  399 

7.  Before  a  survey  has  been  returned,  it  is 
competent  to  the  deputy  surveyor  to  ex- 
tend the  lines  so  as  to  cover  any  land  not 
appropriated,  to  the  amount  of  the  quan- 
tity in  the  application.    But  if  after  the 
survey  has  been  executed,   and   before 
the  extension  of  the  lines,  a  survey  has 
been  made  upon  a  younger,  or  even  a 
shifted  application,  and  returned  into  of- 
fice, or  made  known  to  the  owner  of  the 
first  survey,  it  is  not  in  the  power  of  the 
latter  to  extend  his  lines  so  as  to  include 
land  within  the  last  survey.  Lessee  of  Bid- 
die  v.  Dougall,  ii.  37 

8.  A  warrant  issued  from  the  land  office  on 
the  5th  of  April  1774  for  300  acres  in  the 
name  of  A,   upon   which   the   purchase 
money  was  paid.  It  was  surveyed  in  1776 
under  the  direction  of  B,  and  the  deputy 
surveyor  marked  upon  the  survey,  that 
it  was  in  dispute  between  B  and  C.    In 
1778  B  was  killed  by  the  Indians  and  his 

VOL.  VI. 


house  and  papers  burned.  The  land  was 
afterwards  sold  under  execution  as  the 
property  of  B,  and  up  to  the  trial  of  the 
ejectment  by  the  purchaser  in  1807,  no 
person  had  ever  claimed  A's  warrant  in 
opposition  to  B  Held  that  these  circum- 
stances were  sufficient  evidence,  that  B 
was  the  owner  of  „#'*  warrant.  Lessee  of 
Evans  v.  J\\irgrjng,  ii.  55 

9.  Where  a  survey  made  and  returned  into 
office  for  Disclaimed  by  C  under  his  own 
application,  C  has  no  right  to  m  ike  any 
addition  to  the  survey  returned,  without 
an  order  from  the  land  office ;  and  no  pri- 
vate intention  or  action  of  his,  can  hinder 
the  proprietaries  from  selling  the  adjoin- 
ing land  to  any  person  who  may  apply 
for  it.  ibid. 

10.  A  and  B  purchase  a  warrant  and  sur- 
vey as  tenants  in  common.    B  resides  in 
England,  and  A  is  the  acting  partner  in 
Pennsylvania,  who  carries  on  all  the  cor- 
respondence with  an  agent,  in  relation  to 
thi  land  surveyed.  A,  ten  years  after  the 
return  of  survey  into  office,  by  indorse- 
ment thereon   in  the  surveyor  general's 
office,  declares  tf~that  the  survey  not  hav~ 
"  ing  Seen  made  on  the  land  called  for  by 
"  the   warrant,  on   -which  it    is  returned" 
(which  was   the  fact)  "  he  thereby  relin- 
"  (juuslies  the  right  to  the  same  to  C"  B  did 
not  dissent  from  the  relinquishment  for 
13  years,  when  he  and  A  conveyed  the 
tract  to  a  purchaser  for  a  valuable  consi- 
deration. Held  that  the  indorsement  upon 
the  survey  by  A  was  an  abandonment  of 
the  survey  by  both   partners,  and  that 
their  vendee  could  not  recover  any  part 
of  it.  Lessee  of  M' Knight  v.  Yingkuid, 

ii.  61 

11.  On  the  28th  July  1773,  A  took  a  warrant 
from  the  land  office  descriptive  of  certain 
land,  which  was  surveyed  on  other  land 
the  15th  June  1774.    The  survey  was  re- 
turned into  office  before  the  26th  of  Au- 
gust 1783;  for  on  that  day  an  indorsement 
was  made  upon  the  return  by  a  clerk  in 
the  land  office,  that  "  A  believed  the  tur- 
"  vey  virong  laid,  and  requested  the  surveyor 
"  to  adjust  it,  -which  he  had  agreed  to."    On 
the  17th  September  1787,  A  applied  to  the 
board  of  property  for  an  order  to  survey 
his  warrant  on  the    land  it  called    for, 
which  was  granted,  and  the  survey  was 
accordingly  made  on  the  26th  of  Novem- 
ber 1787,  and  returned  the  27th  February 
1788.    On  the  26th  October  1772,  B  took 
a  warrant  descriptive  of  certain  land,  and 
on  the  19th  June  1785  surveyed  it  upon 
land  it  did  not  call  for,  namely,  the  land 
called  for  in  jfs  warrant  of  1773,  the  pre- 
mises in  the  ejectment.  The  survey  was 

41 


618 


GENERAL  INDEX. 


returned  into  office  probably  in  1785  or 

1786,  but  at  the  latest  on  the  9th  yune 

1787,  and  was  patented  the  4th  January 

1788,  Held  that  Jl  by  his  neglect  to  follow 
up  his  objection  to  the  survey  made  in 
1774,  had  lost  his  claim  to  the  land  de- 
scribed in  his  warrant  of  1773,  and  that 
B  was  entitled  to  recover.  Lessee  of  Miles 
v.  Palter,  ii.  65 

12.  A  survey  made  by  an  assistant  deputy 
surveyoi  for  himself,  is  of  no  validity  un- 
til   it    is   recognized   by   his  principal. 
Qutere,  whether  a  survey  made  by  a  de- 
puty surveyor  for  himself,  has  any  validity 
until  it  is  accepted  by  the  surveyor  gene  • 
ral.  Lessee  ofJM Kenzie  v.  Crow,       ii.  105 

13.  An   actual  settler  cannot    support  an 
ejectment  without   a  survey.     Cosby  v. 
Lessee  of  Broivn,  ii.  124 

14.  The  act  of  19th  February  1801,  which 
authorizes   the  receiver  general  to  give 
certificates  of  credit  to  certain  persons 
•whose  lands  fell  within  the  state  of  New 
Tork,  to  be  used  in  taking  out  new  war- 
pant*.,  operates  so  far  as  respects  those 
warrants,  as  a  repeal  of  all  former  laws 
requiring  a  stttlem/cnt,  previous   to   the 
issuing  of  a  warrant.    Commonwealth  v. 
Cochran,  n.  270 

15.  A  warrant  and  survey  with  payment  of 
purchase  money,  are  to  be  considered  in 
Pennsylvania  in  the  same  light  as  the  le- 
gal estate  in  Englarui,  and  are  not  to  be 
distinguished,  as  to  conveying,  intailing, 
and  barring  intails,  from  estates  strictly 
legal.   Lessee  of  Willis  v.  Bucher,     ii.  455 

16.  When  a  claim  setup  by  a  third  person 
to  a  warrant  and  survey,  remains  undis- 
puted for  the  space  of  between  thirty 
and  forty  years,  and  there  is  nothing  to 
shew  that  the  warrantee  has  transferred 
his  title  to  anyone  else,  it  is  strong  evi- 
dence to  prove  that  the  right  of  the  war- 
rantee vested  in  the  claimant   by  some 
conveyance  which  is  lost.    Lessee  of  Gal- 
loway v.  Ogle,  ii.  468 

17.  A  survey  of  288  acres  in  the  old  pur- 
chase, made  in  1788  upon  a  warrant  for 
100  acres  issued  in  1751,  was  returned 
into  office  before  any  other  person  had 
acquired  a  right,  and  was  not  objected  to 
by  the  surveyor  general.  This  is  a  suffi 
cient  title  to  recover  in  ejectment.  Lessee 
ofSteinmetz  v.Toung,  ii.  520 

18  Ii  has  been  the  practice  in  the  land  of- 
fice since  the  revolution  to  accept  surveys 
made  since  the  year  1767  upon  old  war- 
rants, notwithstanding  they  contained 
more  than  ten  per  cent,  surplus.  ibid. 

19.  Ii  a  pa>  ty  k  .ows  of  a  survey  having  been 
made  for  another,  and  returned  to  the 


land  office,  without  any  improper  con- 
duct in  the  person  obtaining  it,  it  is 
against  equity  to  permit  him  to  take 
advantage  of  those  irregularities  in  the 
survey  over  which  the  owner  of  it  had 
no  control.  Lessee  of  Keble  v.  Arthurs, 

iii.  26 

20.  A  return  of  survey  is  strong  presump- 
tive evidence  that  a  regular  survey  has 
been  made  on  the  ground ;  and  it  lies 
upon  the  party  objecting  to  it,  to  shew 
that  it  has  not,  by  such  circumstances  as 
are  inconsistent  with  a  survey.  Lessee  of 
Win  v.  Stevenson,  iii.  35 

21.  What  is  a  reasonable  description  in  a 
warrant.  ibid. 

22.  The  owner  of  a  prior  warrant  and  sur- 
vey upon  which  the  purchase  money  is 
paid,  is  not  barred  either  in  law  or  equity 
from  recovering  in  ejectment,  notwith- 
standing there  has  been  a  derision  against 
him  by  the  board  of  property  in  conse- 
quence of  his  neg'ecting  to  attend  the 
hearing  upon  a  caveat,  and  he  has  lain  by 

fifteen  years  fter  that,  during  which  the 
party  in  whose  favour  the  caveat  was  de- 
cided, has  paid  his  purchase  money,  ob- 
tained a  patent,  and  made  improvements 
on  the  land.  Although  the  owner  of  such 
warrant  and  survey,  may  relinquish  the 
land,  yet  when  the  purchase  money  is 
paid,  these  circumstances  are  not  suffi- 
cient evidence  of  relinquishment.  The 
omitting  to  take  actual  possession  of  the 
land  is  no  evidence  of  it,  nor  can  the  de- 
lay to  bring  an  ejectment  be  a  bar,  if  it 
be  fora  length  of  time  less  than  that  pre- 
scribed bv  the  act  of  limitations.  Lessee 
of  Cox  v  Cromwell,  iii.  1 14 

23.  A  recital  in  a  warrant  of  acceptance  is 
good   evidence  against  the  proprietary, 
but  not  against  third  persons   claiming 
adversely  to   the    survey,   under   a  title 
which  commenced  before  ti-e  return  of 
survey.    Lessee  of  Bonnet  v.  Devebauqh, 

iii.  175 

24.  In  the  case  of  warrants  descriptive  of 
the  land  intended  to  be  surveyed,  either 
precisely,  or  with  such  reasonable  cer- 
tainty, as  is  sufficient  to  designate  it,  the 
title  attaches  from  the  date  of  the  war- 
rant, if  du.  diligence  is  used  in  obtaining 
a  survey.  If  the  warrant  gives  but  a  loose 
description,  allowing  a  scope  of  several 
miles,  the  title  does  not  attach  until  sur- 
vey. And  in  the  case  of  shifted  warrants 
or  locations,  where  the  survey  is  made  on 
land  different  from  that  described,  it  has 
no  ef?Lcl,  except  against  those  who  have 
notice  of  it,  until  return  into  office,  an 
acceptance  by  the  surveyor  general.  Les- 
see ofLauman  v.  Thomas,  \\.  51 


GENERAL  INDEX. 


619 


25.  A  obtained  a  descriptive  warrant,  a  sur- 
vey and  patent  for  a   tract  of  land,  to 
which  B  at  the  date  of  the  warrant,  had 
a  subsisting1  right  by  improvement;  but  B 
had  previously  left  the  land  and  had  not 
returned,  although  he  was  still  in  time  to 
return.  Cafterwards  went  into  possession, 
and  improved,  but  not  by  title  derived 
from  B.  Held  that  although  Jfs  warrant, 
survey  and  patent,    would    not   prevail 
against    B's    improvement    right,    nor 
against  any  one  deriving  title  from  B,  yet 
they  are  good  against  C  a  stranger,  and 
A  is  entitled  to  recover  the  land.    Lessee 
of  Magens  v.  Smith,  iv.  73 

26.  The  assignment  or  bargain  and  sale  of 
a  warrant  and  survey,  is  within  the  re- 
cording act  of    18th  March   1775,  and 
therefore   if   not    recorded   within    six 
months,   is  void    against   a  subsequent 
purchaser  without  notice;  but  if  the  first 
bargainee  or  purchaser  obtains  a  patent 
upon  the  warrant  and  survey,  and  then 
the   burgainor  sells   and   conveys  them 
over  again,  the  nonregistry  of  the  assign- 
ment is  immaterial,  because  the  patent 
is  notice,    and    the    second    pu  chaser 
should  have  recurred  to  the  land  office 
before  he  bought  the  warrant  and  sur- 
vey. Lessee  of  Carrey  v.  Caxton,      iv.  140 

27-  A  wan-ant  and  survey  are  a  sufficient 
title  to  maintain  an  ejectment ;  but  they 
do  not  constitute  a  legal  title.  iv.  145 

28.  It  is  not  necessary  that  a  survey  should 
recite  the  authority   under  which  it  is 
made  ;  there  are  many  titles  founded  on 
such   surveys.     The    authority    may  be 
shewn  aliunde.  Sprout  v.  Lessee  of  Plum 
stcd,  iv.  189 

29.  To  give  validity  to  a  warrant  issued 
from  the  land   office  since  the  22d  of 
September,  1794,  there  must  be  a  personal 
resident  settlement  on  the  land  at  the- 
time;  and  if  the  officers  of  the  land  office 
are  deceived  by  fraudulent  evidence  to 
this  point,  or  err  in  the  construction  of 
law  and  afterwards  c  jnfirm  the  warrant 
and  survey  by  a  patent,  it  is  still  compe- 
tent to  a  third  person  claiming  adversely, 
to  shew  the  fraud  or  the  error,  and  to 
defeat  the  patent.  Bixlerv.  Baker,  iv.  213 

30.  Where  there  is  no  fraud,  a  party  is 
bound  by  the  lines  of  his  survey  returned, 
and  the  acceptance  of  a  patent  thereon 
Morris  v.  Thomas,  v.  77 

31.  Where  two  or  more  take  out  a  warrant, 
pay  the  purchase  money,  and  obtain  a 
survey,  they  hold  as  tenants  in  common, 
unless  the  contrary  is  set  forth;  und  either 
of  them  may  require  that  the  patent  shall 
be  made  in  that  way.    Caines  v.  Lessee  of 
Grant,  v.  l 


32.  Although  the  terms  published  at  the 
opening  of  the  land  office  on  the  3d  of 
April  I,  69,  made  all  locations  void,  upon 
which  a  survey  was  not   made   in   six 
months,  and  the  purchase  money  paid  in 
twelve,  yet  these  terms  were  so  uniform- 
ly relaxed,  that  in  the  case  of  a  survey 
returned  before  the   land  had  been  duly 
acquired  by  another,  and  payment  of  the 
purchase  money  and  interest  at  any  time, 
the  courts  of  law  would  have  prevented 
the  proprietaries  from  insisting  on  the 
forfeiture.    Lessee  of  BicLlle  v.  Doitgal, 

v.  142 

33.  Hence  where  a  loose  location  of  the  3d 
of  April  1769  was  surveyed  on  the  15th 
of  May  1772,  and  returned  into  office  on 
the  3d  of  July  1772,  but  no  purchase  mo- 
ney was  paid  until  the  27th  of  February 
1800,  when  a  warrant  of  acceptance  issu- 
ed, and  a  patent  was  granted,  it   was 
held  not  to  be  competent  to  a  person 
claiming  under  a  descriptive  location  of 
the  same  date,  surveyed  on  the  4th  of 
July  1774,  returned  on  the  15th  and  pa- 
tented on  the  17th  of  August  1774,  to  al- 
lege a  forfeiture  by  delay  of  survey,  or 
non  payment  of  purchase  money.         ibid. 

34.  The  non  payment  of  purchase  money, 
being  a  matter  between  the  purchaser 
and  owner  of  the  soil,  no  third  person  can 
take  advantage  of  it,  or  has  any  thing  to 
do  with  it.  ibid. 

35.  The  omission  to  pay  the  purchase  mo- 
ney, after  a  survey  returned,  is  not  evi- 
dence of  an  abandonment.  ibid. 

36.  A  warrant  and  survey  are  in  most  res- 
pects considered  as  a  leg.il  estate,  except 
as  against  the  Commonwealth.  They  are 
subject  to  the  same  laws  of  descent,  de- 
vise and  conveyance,  as  the  legal  estate. 
They  are  subject  to  dower  and  curtesy  ; 
and  an  ejectment  may  be  maintained  on 
them.  Lessee  ofMaclay  v.  Work,     v.  154 

37.  An  actual  settler  cannot  maintain  an 
ejectment  for  his  improvement,  without 
an  official  survey,  or  a  private  one,  if  by 
due  exertion  lie  was  unable  to  obtain  the 
former.  Stock-man  v.  Blair,  v.  211 

38.  A  survey  may  be  made  by  a  deputy 
surveyor  without  possession  of  the  war- 
rant at  the  time,  if  he  has  once  had  it, 
and  entered  it  in  his  book.  ibid, 

39  Where  a  leading  warrant  plainly  des- 
scribes  land  in  one  district,  it  is  in  n  >  res- 
pert  a  f  and  upon  the  act  of  Jd  of  April 
1792,  that  the  same  and  many  adjoining 
warrants  were  previously  delivered  to  the 
surveyor  of  another  district  into  which 
some  of  them  might  run,  who  handed 
them  to  the  surveyor  of  the  first  district; 
and  that  the  whole,  after  he  hud  entered 


620 


GENERAL  INDEX. 


twelve  or  thirteen  in  his  books,  were  by 
him  returned  to  the  surveyor  from  whom 
he  got  them,  who  entered  them  all  in 
his  own  book.  v.  211 

40.  Upon  a  descriptive  location,  the  deputy 
surveyor  surveyed  more  than  the  usual 
excess,  and  without  the   knowledge  of 
the  owner,  cut  off  a  part  of  the  survey 
containing  the  best  lands,  and  answering 
most  accurately  to  the  desctiption,  for 
which  another  person  at  the  deputy's  in- 
stance entered  a  location,  and  got  a  re- 
turn for  himself.    The  owner  of  the  first 
location  not  being  informed  of  the  cir- 
cumstance, entered  upon  the  disputed 
part,  and  improved  it.  Held,  that  the  re- 
turn of  survey  did  not  prejudice  the  old- 
est proprietor,  nor  benefit  the  youngest ; 
and  that  the  oldest  had  title.  Caufman  v. 
Congregation  of  Cedar  Spring,  vi.  59 

41.  A  warrant,  survey,  and  patent  for  lands 
not  purchased  of  the  Indians,  and  which 
the  proprietaries  did  not  know  at  the 
time  of  granting,  to  be  within  the  Indian 
limits,  pass  no  right.     Thomson  v.  Johns- 
ton, vi.  68 

42.  The  field  notes  of  a  deputy  surveyor, 
shewing  a  survey  for  .4  at  a  particular 
time;  a  warrant  in  the  name  of  £,  calling 
for  A  as  adjoining, — an  old  draught  of  a 
survey  found  in  the  office  of  the  deputy 
surveyor,  on  which  Jfs  name  was  indor- 
sed in  the  handwriting  of  the  deputy  sur- 
veyor,— all  these  papers   admissible  in 
evidence  to  shew  a  survey  for  A.    Boyles 
V.  Johnston's  Executors,  vi.  125 

WARRANTY. 
See  SPECIAL  WARRANTY. 

The  words  "  grant,  bargain,  sell,"  do  not, 
under  the  act  of  1715,  amount  to  a  gene- 
ral warranty,  but  merely  to  a  covenant, 
that  the  grantor  has  not  done  any  act, 
nor  created  any  incumbrance,  whereby 
the  estate  granted  by  him  may  be  de- 
feated. Lessee  of  Grutz  v.  L-wait,  ii.  95 

WAY  GOING  CROP. 

In  an  action  of  trespass  for  cutting  and 
carrying  away  his  grain,  a  lessee  for 
years  may  give  evidence,  that  by  the 
custom  of  the  country,  he  is  entitled  to 
the  -way  going  crop,  though  it  is  not  spe- 
cially stated  in  his  declaration,  and 
though  he  held  under  a  written  lease, 
which  gave  no  such  right.  That  custom 
extends  throughout  this  state,  and  enters 
into  every  contract  to  which  it  applies. 
Stnltz  v.  Dickey,  v.  2d5 


WIDOW. 
See  DONATION  LAND. 

WILL. 

Sec,  EXECUTOR,  4. 

1.  A  will  of  personal  property  must  be  exe- 
cuted according  to  the  law  of  the  testa- 
tor's domicil  at  the  time  of  his  death. 
Desesbats  v  Serquier,  \.  336 

2.  A  will  in  writing  of  lands  may  be  revok- 
ed by  the  parol  republication  of  a  former 
Will  in  writing,  and  in  pnler  to  ascertain 
whether  the  republished   will  operates 
as  a    revocation,   the    contents   may   be 
proved  by  parol,  if  the  will  itself  cannot 
be  found  and  the   usual  ground  is  laid 
for  introducing  the  secondary  evidence. 
Havardv.  Davis,  ii.  406 

3.  A  subsequent  marriage  and  birth  of  pos- 
thumous or  other  issue,  do  not  amount 
by  the  law  of  Pennsylvania  to  a  total  re- 
vocation of  a  will,  even  where  the  sub- 
sequent issue  is  the  testator's  only  child. 
They  amount  to  a  revocation  pro  tanto, 
namely,  so  far  as  regards  the  widow  and 
child,  but  not  as  to  the  appointment  of 
executors,  nor  as  to  a  power  to  sell  for 
the  payment  of  debts.    Coates  v.  Hughes, 

iii.  498 

4.  A  will  of  personal  property  must  be 
proved  in  the  regisU  r's  office  before  the 
common  law  courts  of  this  state  can  give 
it  effect.   Toner  v.  Taggart,  v  490 

5.  A  last  will  in  Pennsylvania  does  not  sever 
a  jointenancy,  notwithstanding  the   act 
of  1705,  which  makes  a  will  good  and 
available  in  law  for  the  granting,  con- 
veying  and  assuring  of  lands,  &c.  Duncan 
v.  Forrer,  vi.  193 

6.  A  toili  of  land  which  has  accompanied 
the  possession  thirty  years,  is  evidence, 
without  proof  of  its  execution.  Shatter  v. 
Brand,  vi.  435 

WITNESS. 
See  COSTS,  1. 

EVIDENCE,  16.  20.  22.  24. 

1.  A  party  ma}  call  as  many  witnesses  as 
he  thinks  necessary  to  make  out  his  case; 
the  Court  will  not  interfere,  unless  he  is 
guilty  of  oppression.    Debenneville  v.  De- 
denneville,  i.  46 

2.  It  lies  on  the  party  who  objects  to  the 
competency  of  a  witness  on  the  ground 
of  interest,  to  shew  an  interest  or  sup- 
posed  interest  at  the  time  of  the  oath 
being  administered.  It  is  not  enough  that 
the  witness  at  a  former  period  conceived 
himself  to  be  interested.  Letsee  of  Henry 
v.  Morgan,  ii.  497 


GENERAL  INDEX. 


621 


3.  A  leading1  question  must  be  objected  to 
at  the  time  it  is  put  to  the  witness.  If  no 
exception  is  then  taken  by  the  opposite 
party,  the  answer  of  the  witness  to  the 
leading  question, cannot  bt  opposed  upon 
that  ground,  when  his  deposition  is  read 
upon  the  trial.  Sheeler  v.  Spear,      iii.  loO 

4.  If  the  subscribing  witness  to  a  bond  is 
out  of  the  jurisdirtion  of  the  Court,  and 
upon  diligent  inquiry  no  person  can  be 
found  within  the  jurisdiction,  who  caii 
prove  his  handwriting,  the  handwriting 
of  the  obligor  may  be  proved,  dark  v. 
Sanderson,  iii.  '92 

5.  A  plaintiff  who  after  the  commencement 
of  the  suit,  has  made  a  voluntary  assign- 
ment of  all  his  property  to  creditors,  and 
has  also  executed  a  release  to  the  as- 
signees of  all  his  interest  in  the  money 
which  may  be  recovered  in  the  action,  is 
a  competent  witness  in  the  cause,  pro- 
vided all  the  costs  are  paid  before  he  is 
sworn.  Steels  v.  Phanix  Ins.  Co.      iii.  306 

6.  The  widow  is  a  good  witness  to  establish 
a  donatio  causa  mortis  by  her  husband 
Wells  \.  Tucker,  iii.  366 

7'  A  person  who  has  paid  taxes  to  his 
agent,  to  be  paid  over  to  the  treasurer 
of  the  county,  is  not  a  competent  witness 
to  prove  the  payment,  in  a  suit  by  the 
treasurer  against  the  agent  He  has  a 
direct  interest  in  the  suit.  Hayes  v,  Grier, 

iv.  80 

8.  No  objection  can  be  made  to  a  witness 
on  the  ground  of  interest,  unless  he  be 
directly  interested,  that  is,  unless  he  may 
be  immediately  benefited  or  injured  by 
the  event  of  the  suit,  or  unless  the  ver- 
dict to  be  obtained  by  his  evidence,  or 
given  against  it,  will  be  evidence  for  or 
against  him  in  another  action,  in  which 
he  may  afterwards  be  a  party.  iv.  83 

9.  After  a  witness  has  been  examined  in 
chief,  and  turned  over  to  the  opposite 
counsel  for  cross-examination,  it  is  still 
in  the  discretion  of  the  Court,  to  permit 
the  party  who  produced  the  witness  to 
examine  him  even  as  to  new  matter,  in 
any  stage  of  the  trial.  Curren  v.  Cannery, 

v.  488 

10.  One  of  the  defendants,  an  administra- 
tor, having  released  all  his  interest  in  the 
intestate's  estate,  and  having  offered  to 
pay  into  Court  all   the  costs  of  the  suit 
in  case  he  should  be  .-ulmitted,  was  offer, 
ed  as  a  witness.  Qu<ere,  whether  the  offer 
to  pay  is  sufficient,  and  whether  there 
must  be  an  actual  payment  both  of  all 
costs  accrued  at  the  time  of  payment, 
and  of  all  tliat  may  afterwards  accrue. 
Heckert  v.  Hair.e,  vi.  16 


11.  If  there  be  an  issue  upon  the  plea  of 
plene  admnistravit,  an  administrator  can- 
not be  made  a  witness  by  releasing  his 
interest,  and   paying  costs  ;  because  non 
constat  that  that  issue  may  not  be  found 
against   him,  and    he   eventually  made 
personally  responsible  for  the  debt  vi.  16 

12.  Upon  an  indictment  for  fornication  and 
bastardy,  a  married  woman  is  a  compe- 
tent witness  to  prove  the  criminal  con- 
nexion with  her.   Commonwealth  v.  Shep- 
herd, vi.  283 

13.  The  wife  cannot  prove  the  non-access 
of  the  husband  ;  but  if  the  Court  permit 
her  to  be  asked  a  question  from  the  an- 
swer to  which  non-access  may  be  infer- 
red, as  "  how  long  it  was  since  she  had 
"  seen  her  husband,"  and  afterwards  in- 
struct the  jury  that  they  were  not  to  con- 
sider any  thing  which  fell  from  the  wife 
as   evidence  of  non-access,  the  verdict 
cannot  be  disturbed  on  account  of  the 
question.  ibid. 

14  If  a  plaintiff  includes  persons  in  the 
suit,  against  whom  no  evidence  is  offer- 
ed, they  may  be  witnt- sses  ;  so  if  after 
suing  several  for  a  joint  trespass,  he  pro- 
ceeds to  issue  and  trial  against  some  of 
them,  but  does  not  rule  the  others  to 
plead,  the  latter  may  be  witnesses  for 
the  former,  although  all  were  concerned. 
The  interest  of  those  not  on  trial,  is  in 
the  question,  not  in  the  verdict.  Wakely  v. 
Hart,  vi.  316 

15.  A  trustee,  who  is  lessor  of  the  plaintiff 
in  ejectment,  is  a  good  witness  for  the 
defendant  to  shew  that  the  real  trust  is 
different  from  that  declared  in  the  con- 
veyance. Drum  v.  The  Lessee  of  Simpson, 

vi.  478 

16.  A  husband  cannot  be  a  witness,  where, 
in  consequence  of  his  testimony,  his  wife 
may  receive  a  benefit  after  his  death. 
Lessee  of  Snyder  v.  Snyder,  vi.  483 

17.  A  question  cannot  be  put  to  a  witness 
so   framed  as    to  indicate    the  answer 
which  the  party  wishes,  e.  g.  "  did  he  as- 
"  sign  to  you  as  a  reason  why  he  would 
"  not  bid  more  for  the  isle  of  Cue,  that  he 
"  could  buy  Ws  land  for,  &c."  ibid. 

18.  A  grantor  with  special  warranty,  is  a 
good  witness  to  support  the  title  against 
any  one  not  claiming  under  him  or  his 
heirs.  Lessee  of  Sweitzer  v.  Meete,  vi.  500 


WORDS. 
fife  SLANDBR. 


622 


GENERAL  INDEX. 


WRIT. 

See  JUSTICE  OF  THE  PEACE,  1. 
An  indorsement  on  the  original  by  the  de- 
puty sheriff,  of  the  day  on  which  he 
made  the  arrest,  is  no  part  of  the  record, 
nor  is  it  evidence  of  the  time  when  the 
arrest  was  made.  Dolan  v.  Briggs,  iv.  496 


WRITTEN  INSTRUMENTS. 

The  construction  of  written  instruments  is 
the  province  of  the  court ;  and  it  is  of  the 
utmost  importance  that  this  province 
should  not  be  invaded  by  the  jury.  Wtlsh 
v.  Diuar,  iii.  329 


FINIS. 


LAW   BOOKS 

PUBLISHED  BY 

P.  H.  NICKLIN. 

WHARTON'S  DIGEST  of  all  the  Pennsylvania  Reports. 

PURDON'S  DIGEST  of  the  Laws  of  Pennsylvania. 

INGRAHAM  on  Insolvency. 

SERGEANT  &  RAWLE'S  REPORTS,  Vols.  I.  &  II. 

HENRY  BLACKSTONE'S  REPORTS,  2  Vols. 

BE CC ARIA  on  Crimes  and  Punishments. 

FEARNE  on  Remainders  and  Executory  Devises. 

P.  //.  JV  has  for  sale  the  following  Law  Books. 

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vols. — Wheaton's  Reports,  7  vols. — Cranch's  Reports,  9  vols. 
Durnford  and  East's  Reports,  8  vols. — East's  Reports,  16 
vols. — Vesey  Junior's  Reports,  18  vols. — Vesey  anclBeames' 
Reports,  2  vols. — Burrow's  Reports,  5  vols. — Salkeld's  Re- 
ports, 3  vols. — and  a  general  assortment  of  British  and  Ame- 
rican Law  Books. 


LAW  LIBRARY 

CALIFOK 


